AGREEMENT AND CONDITIONS

OF CONTRACT FOR

BUILDING WORKS

PUBLISHED BY

THE JOINT BUILDING COUNCIL, KENYA

WITH THE SANCTION OF

 THE ARCHITECTURAL ASSOCIATION OF KENYA

 THE KENYA ASSOCIATION OF BUILDING AND
CIVIL ENGINEERING CONTRACTORS

APRIL 1999 EDITION

THE COPYRIGHT OF THIS DOCUMENT IS VESTED IN

THE JOINT BUILDINGCOUNCIL, KENYA
 CONTENTS

CLAUSE PAGE

1.0 Definitions 4-6

2.0 Articles of Agreement 7 - 11
3.0 General obligations of the Employer 11
4.0 Generals obligations of the Contractor 11 - 12
5.0 General obligations of the Architect 12
6.0 General obligations of the Quantity surveyor 12
7.0 Contract documents 12 - 13
8.0 Contract bills and contract price 14
9.0 Contractors site agent and other staff 14 - 15
10.0 Clerk of Works 15
11.0 Liability against injury to person and property 16
12.0 Insurance against injury to persons and property 16 - 18
13.0 Insurance of the Works (Contractors liability) 18-19
14.0 Insurance of the Works (Employers liability) 19 - 20
15.0 Insurance of the Works (works of alteration etc...) 20 - 21
16.0 Performance bond 21
17.0 Compliance with regulations, notices, etc... 21 - 22
18.0 Programmed of Works 22 - 23
19.0 Access to the Works 23
20.0 Possession of site and commencement of Works 23
21.0 Leveling and setting out 23 - 24
22.0 Architects Instructions 24 - 25
23.0 Specifications of goods, material, and workmanship 25 - 26
24.0 Samples and tests 26 - 27
25.0 Royalties and patent rights 27
26.0 Assignment 27
27.0 Subletting 28
28.0 Suspension of the Works by the Architect 28 - 29
29.0 Suspension of the Works by the Contractor 29 - 30
30.0 Variations 30 - 33
31.0 Nominated sub-contractors 33 - 39
32.0 Nominated suppliers 39 - 41
33.0 Work by other persons engaged by the Employer 41
34.0 Payments 41 - 48
35.0 Fluctuations 48 - 50
36.0 Extension of time 50 - 52
37.0 Loss and expense caused by the disturbance of regular 53 - 55
Progress of the Works
38.0 Termination of the Contract by the Employer 55 - 58
39.0 Termination of the Contract by the Contractor 58 - 61
40.0 Termination of the Contract by either party 61 - 62
41.0 Practical completion and defects Liability 62 - 64
42.0 Sectional completion 64 - 66
43.0 Damages for delay in completion 66
44.0 Antiquities and other objects of value 66 - 67
45.0 Settlement of disputes 67 - 69
Appendix 70
Form of performance bondby the contractor 71 - 72
Form of payment bond by the Employer 73 - 74
 1.0 DEFINATIONS

1.1 Contractor in accordance with these conditions and includes instructions

Architects instructions – means instructions issued by the Architect to the
Issuedby otheragents ofthe Employer appointedunder article 2. 13 of the
agreement.
1.2 Bills of quantities or contract bills – Means the document drawn up by
The Quantity Surveyor and priced by the Contractor to arrive at the
contract price.
1.3 Certificate of practical completion – Means a certificate issued by the
1.3.1 Architect to the Contractor to signify a state of completion
where, in the opinion of the Architect, the Works are
substantially complete and can effectively and conveniently be
used for the intended purposes.
1.4 Final certificate – Means a certificate issued by the Architect to the
1.4.1 Contractor signifying that the Works have been carried out and
completed in accordance with the terms of this contract and
that all adjustments to the contract price have been made in
accordance therewith.
1.5 Contract period – Means the period agreed for the construction of the
1.5.1 Works and stated in the appendix to these conditions or
extended in accordance therewith.
1.6 Contract price – Means the price for the Works as stated in article 2.5
Of the agreement or asadjusted in accordance with the contract.
1.7 Contractor – Means the person or firm named in the articles of agreement
with whom the Employer has entered into contract and includes the legal
successors in title and permitted assigns.
1.8 Contractors equipment – Means all machinery, vehicles, tools, apparatus and
other things required for the carrying out and completion of the Works and
the remedying of any defects.
1.9 Employer – Means the person or firm named in the articles of agreement
With whom the Contractor has entered into contract and includes the legal
successors in title and permitted assigns.
1.10 Defect – Means any aspect of the Works which is not in accordance
With the contractor tothe reasonable satisfaction of the Architect.

1.11 Force Majeure – Means an event, occurrence or circumstance which,

1.11.1 is beyond a party’s control,

1.11.2 Such party could not reasonably have foreseen before contracting.

1.11.3 Having arisen, such party could not reasonably have avoided or

Overcome,

1.11.4 And is not substantially attributable to either part.

1.12 Patent defect – Means adefect whicha reasonable inspection by the

Architect would disclose.

1.13 Latent defect – Means a defect which a reasonable inspection by the

Architect would not disclose.

1.14 Final account – Means the document prepared by the Quantity Surveyor

Containing all the adjustments to the contract price in accordance with

The conditions of contract and which in his opinion is the total value of

The Works at final completion.

1.15 Materials and goods – Means things of all kinds and all supplies delivered

By the Contractor, sub-contractors, suppliers or by others for

Incorporation in the Works whether stored on site or elsewhere but Not

yet incorporated in the Works.

1.16 Prime cost sum – Means a sum included in the contract bills for Works

Or Services to be executed by a nominated sub-contractor, statutory or

Other authority or for materials or goods to be obtained from a Nominated supplier.

1.17 Provisional sum – Means a sum included in the contract bills for the

Execution of work which cannot be entirely foreseen, defined or

Detailed at the time the tender documents are issued.

1.18 Site – Means the place or places where the permanent Works are

To be carried out and to which materials and goods are to be delivered?

And includes workshops or other places where materials, goods or work

Are being prepared for incorporation in the Works either by the Contractor, sub-contractor or
by others.

1.19 Works – Means the permanent works designed for the Employer by the Architect or
other agents for execution by the contractor and as Described in the contract documents. It
shall include work of all Sub-contractors and suppliers as well as materials and goods supplied

For incorporation in the Works.

1.20 All reference to days shall mean calendar days of 24 hours duration
And shall include non-working days unless otherwise stated.

1.21 Unless inconsistent with the context, the masculine includes the
Feminine, the singular includes him plural and vice versa.

1.22 Titles and headings are for reference purposes only and do not form

Part of these conditions. They shall not be taken into consideration in The interpretation of
these conditions or the contract.
2.0 ARTICLES OF AGREEMENT

2.1 This agreement is made on the …………............day of………………………….BETWEEN

…………………………………………………………………………………..of (or whose registered office is

Situated at)…………………………………………………………………………………………………………..

(Hereinafter called “the Employer”) of the one part

AND…………………………………………………………………………………………………. of (or whose

Registered office is situated at) ………………………………………………………………………………

………………………………………………………………………………………………………………………………….

(Hereinafter called “the Contractor”) of the other part.

2.2 WHEREAS the Employer is desirous of……………………………………………………………………………..

…………………………………………………………………………………………………………………………………………

…………………………………………………………………………………………………………………………………………

Hereinafter called “the Works” at…………………………………………………………………………………….

On Land Reference No………………………………………………………………………… and has caused

Drawings, bills of quantities and specifications showing and describing the work to be Done to
be prepared by or under the directions of an Architect.

2.3 AND WHEREAS the Contractor has supplied the Employer with a priced copy of the said

Bills of quantities(which copy is hereinafter referred to as “the contract bills”)

AND WHEREAS the said drawings numbered ……………………………………………………………..

…………………………………………………………………………………………………………………………………………

……………………………………………………………………………………………………………………. (Hereinafter)

Referred to as the “the contract drawings”) the contract bills and the specifications have

Been signed by or on behalf of the parties hereto.

NOW IT IS HEREBY AGREED AS FOLLOWS:

2.4 For the consideration hereinafter stated, the Contractor shall upon and subject

To the conditions annexed hereto carry out and complete the Works shown upon

The contract drawings and described by or referred to in the contract bills, the

Specifications and in the conditions of contract.

2.5 The Employer shall pay to the Contractor the sum of kshs. (In words)………………….

………………………………………………………………………………………………………………………………

………………………………………………………………………………………………………………………………

KHz……………………………………………………………. (Hereinafter to as “the contract price”)

Or such sum as shall become payable hereinafter at the times and in the manner

Specified in the said conditions.

2.6 The Employer shall appoint a representative whose name shall be communicated in

Writing to the Contractor, the Architect and the Quantity Surveyor. The powers and

Duties of the representative shall be deemed to be the same as those of the Employer

Unless otherwise stated in writing.

2.7 The term “the architect” in this conditions shall mean

…………………………………………………………………………………………………………………………………..

Of……………………………………………………………………………………………………………………………….

And in the event of his ceasing to be the Architect for the purposes of this contract, the

Employer shall appoint another person for that purpose. Such a person shall not be a

Person against whom the Contractor shall object for reasons considered to be sufficient

By an Arbitrator appointed in accordance with clause 45.0 of these conditions.

2.8 No person subsequently appointed to be the Architect under this contract shall be

Entitled to disregard or overrule any certificate, opinion, decision, approval or

Instruction given or expressed by the previous Architect.

2.9 The Architect shall appoint a representative whose name shall be communicated in

Writing to the Contractor, the Employer and the Quantity Surveyor. The powers and the

Duties of the representative shall be deemed to be the same as those of the Architect

Unless otherwise stated in writing.

2.10 The term “the Quantity Surveyor” in this conditions shall mean

…………………………………………………………………………………………………………………………………….

Of………………………………………………………………………………………………………………………………….

And in the event of his ceasing to be the Quantity Surveyor for the purposes of this

Contract, such other person as the Employer shall appoint for that purpose. Such a

Person shall not be a person whom the Contractor shall object for reasons considered

To be sufficient by an Arbitrator appointed in accordance with clause 45.0 of these

Conditions.

2.11 No person subsequently appointed to be the Quantity Surveyor under this contract

.Shall be entitled to disregard or overrule any valuation, opinion or assessment given or

Expressed by the previous Quantity Surveyor.

2.12 The Quantity Surveyor shall appoint a representative whose name shall be

Communicated in writing to the Contractor, the Employer and the Architect. The

Powers and duties of the representative shall be deemed to be the same as those

Of the Quantity Surveyor unless otherwise stated in writing.

2.13The Employer may appoint Engineers, specialists and other consultants to render

Professional services under the contract. Where so appointed, such Engineers,

Specialists and other consultants shall be deemed, for the purpose of this contract, to

Be rendering such services under the delegated authority of the Architect.

2.14 In the event of the need to appoint a replacement Architect, Quantity Surveyor,

Engineer or other Specialist (whether named in this agreement or not) the Employer

Shall make such appointment as soon as practicable after the need for such

Appointment arises.

2.15 Where the contract does not incorporate bills of quantities, the terms “contract bills”

And “bills of quantities” wherever appearing shall be deemed deleted and replaced with

the term “schedule of rates” as applicable.

2.16 AS WITNESSES the hands of the said parties;

Signed by the said:

………………………………………………………………………………………………………………... (Employer)

………………………………………………………………………………………………………………………………..

In the presence of:

Name: …………………………………………………………………………………………………………………….

Address: ……………………………………………………………………………………………………………………

Signed by the said:

…………………………………………………………………………………………………………… (Contractor)

……………………………………………………………………………………………………………………………….

In the presence of:

Name: ……………………………………………………………………………………………………………………

Address: ……………………………………………………………………………………………………………….

2.17 CAUTION

The words ‘Architect,’ ‘Quantity Surveyor’ and ‘Engineer’ are prescribed and protected

by statute for the use of persons registered as such under the relevant laws. If this

document is used by other than such as a registered person, the references appropriate
 thereto must be deleted or amended.

2.18 NOTE

The contract shall be under seal;

2.18.1 When the articles of association of a limited company which is a party to the

contract so require, or

2.18.2 When either party is a non-trading corporation such as a hospital or school

board.

2.18.3 If the contract is to be executed under seal delete “as witness the hands of”

and insert “signed and sealed by”.

CONDITIONS OF A CONTRACT

3.0 GENERAL OBLIGATIONS OF THE EMPLOYER

The Employer shall upon the execution of the agreement;
3.1 Clearly identify the site upon which the Works will be carried out and access
thereto.
3.2 Confirm that the said site is in his legal possession and that it is free from all
material encumbrances.
3.3 Ascertain and confirm to the Contractor that the proposed Works comply with
all statutory requirements, local authority planning and design bylaws or
regulations as the case may be.
3.4 Make adequate financial arrangements to ensure that all payments to the
Contractor under these conditions are made within the periods and in the
manner stipulated in the contract and shall provide such evidence to the
Contractor on request.

4.0 GENERAL OBLIGATIONS OF THE CONTRACTOR

The Contractor shall upon the execution of the agreement;
4.1 Carry out, superintend upon and complete the Works and rectify any defects
appearing therein in accordance with the contract and to the reasonable and
satisfaction of the Architect, unless it is legally or physically impossible to do so.
4.2 Give a written notice to the Architect specifying any discrepancy, ambiguity or
divergence in these conditions, the contract drawings, the contract bills or
specifications immediately such discrepancy or divergence is detected. The
 Architect shall thereupon issue instructions in regard thereto as soon as is
Practicable.
4.3 Notwithstanding any obligation of the Architect to the Employer and whether
or not the Employer appoints a clerk of Works, the Contractor shall remain
wholly responsible for carrying out and completing the Works in all respects in
accordance with the contract and whether or not the Architect or the Clerk of
Works, if appointed, at any time goes on to the Works or to any workshop or
other places where work is being prepared to inspect or approve the same or
otherwise.

5.0 GENERAL OBLIGATIONS OF THE ARCHITECT

The Architect shall upon the execution of the agreement;
5.1 Issue comprehensive drawings and all necessary details and other information
required by the Contractor for the proper carrying out of the Works.
5.2 Expeditiously supply information, instructions and interpretations required or
requested by the Contractor to ensure the timely carrying out of the Works.
5.3 Issue all necessary approvals and certificates and take other required action as
soon as practicable.
5.4 Where the Architect is required under the contract to exercise his discretion by
giving his decision, opinion, consent or approval or by taking any other action
which may affect the rights and obligations of the Employer to the Contractor
he shall exercise such discretion impartially within the terms of the contract.

6.0 GENERAL OBLIGATIONS OF THE QUANTITY SURVEYOR

The Quantity Surveyor shall, upon the execution of the agreement:
6.1 Expeditiously provide the necessary advice, opinion, assessment,
Measurements, computations, or valuations as the case may be of any matter
required of him under these conditions. While giving advice, opinion,
assessment, measurements, computations or valuations, he shall carry out the
task impartially within the terms of the contract.

7.0 CONTRACT DOCUMENTS

7.1 The contract documents for use in the carrying out of the Works shall be:-
7.1.1 The agreement and these conditions.
7.1.2 Contract drawings as listed in the articles of the agreement.
7.1.3 Contract bills of quantities or schedule of rates as applicable.
7.1.4 Specifications as separately supplied or as contained in the contract bills.
7.2 All the original contract documents shall remain in the custody of the Architect
 or the Quantity Surveyor during the construction period. They shall be available
at all reasonable times for the inspection of the Employer or the Contractor.
Upon the issue of the final certificate, the original contract documents shall be
handed over to the Employer.
7.3 Upon the execution of the contract, the Employer shall register the agreement
with the relevant statutory authority and pay all fees, charges , taxes, duties
and costs arising therefrom.
7.4 Immediately after the execution of the contract, the Architect or the Quantity
Surveyorshall furnish the Employer with one certified set of all contract
documents.
7.5 The Architect and the Quantity Surveyor shall, without charge to the
Contractor, furnish him with:-
7.5.1 A registered counterpart of the agreement and these conditions.
7.5.2 One certified copy of the contract bills, where applicable.
7.5.3 Three certified copies of all contract drawings.
7.5.4 Two certified copies of the unpriced bills of quantities where applicable.
7.5.5 Two certified copies of the contract specifications, if not included in 7.5.4
above.
7.6 So soon as is practicable after the execution of this contract, the Architect shall,
without charge to the Contractor, furnish him (unless he shall have been
previously furnished) with three copies of the descriptive schedules or other
or other like documents necessary for use in carrying out the Works. Provided
that nothing contained in the said descriptive schedules or other documents
shall impose any obligation beyond those imposed by the contract documents.
7.7 As and when necessary the Architect, without charge to the Contractor, shall
furnish him with three copies of such further drawings or details as are
reasonably necessary either to explain or amplify the contract drawings, or
to enable the contractor to carry out and complete the Works in accordance
with these conditions.
7.8 The Contractor shall keep one copy of the contract drawings, a copy of the
unpriced bills of quantities, one copy of the specifications descriptive schedules
or other like documents referred to in sub-clause 7.5 of this condition, and
one copy of the drawings, details and descriptive schedules referred to in
sub-clauses 7.6 and 7.7 of this condition upon the Works so as to be
available to the Architect or his representatives at all reasonable times.
7.9 Upon final payment under clause 34.0 of these conditions, the Contractor shall
, if so requested by the Architect, forthwith return to the Architect all drawings,
details, specifications, descriptive schedules and other documents of a like
 nature which bera the Architect’s name.
7.10 The contract documents are to be taken as mutually explanatory of
one another. for the purposes of interpretation, the priority of the
documents shall be in accordance with the following sequence;
7.10.1 The letter of award of contract
7.10.2 The agreement and these conditions
7.10.3 The bills of quantities
7.10.4 The specifications
7.10.5 The drawings
7.10.6 The schedules and other documents forming part of the contract.
7.11 None of the documents hereinbefore mentioned shall be used by the
contractor or the Employer for any purpose other than this contract
And neither the Employer, the Architect nor the Quantity Surveyor
Shall divulge or use any of the prices in the contract bills except for
The purposes of this contract.

8.0 CONTRACT BILLS AND CONTRACT PRICE

8.1 The Employer shall be deemed to have provided to the Contractor before the
Submission of tender all available data concerning the site and its surroundings.
The Contractor shall be responsible for interpreting such data.
8.2 Notwithstanding the above, the Contractor shall be deemed to have obtained
All necessary information which may affect the tender for the carrying out of the
Works.
8.3 The quality and quantity of the work included in the contract price shall be
Shall be deemed to be that which is set out in the contract bills. The bills, unless
Otherwise expressly stated therein, shall be deemed to have been prepared in
Accordance with the principles of the latest edition of the Standard Method of
Measurement of Building Works for East Africa.
8.4 Any error in description or in quantity or any omission of items from the
Contract but shall be corrected and deemed to be a variation required by
The Architect.
8.5 The contract price shall not be adjusted or altered in any way whatsoever
Otherwise than in accordance with the express provisions of these conditions.
8.6 Subject to sub-clause 8.4 0f this condition, any error whether arithmetical or
Not in the computation of the contract price shall be deemed to have been
Accepted by the parties hereto.

9.0 CONTRACTOR’S SITE AGENT AND OTHER STAFF

 9.1 The Contractor shall constantly keep upon the Works a competent site agent
Who is able to understand and interpret the contract documents and to
Superintend upon the Works.

The site agent shall be literate in English language.

Any instructions given given to him by the Architect shall be deemed to have been

been issued to the Contractor.

9.2 The Contractor shall make his own arrangements for the engagement of all labour
and other workmen, both local or otherwise, required for the Works and shall
comply with statutory, industrial or other rules and regulations governing the
employment and working terms and conditions of labour.
9.3 The Contractor shall be responsible for the observance, by all sub-contractors
(whether nominated or not) of all the foregoing provisions.
9.4 The Architect may (but not unreasonably or vexatiously) issue instructions
requiring the dismissal from the Works of any person employed therein.

10.0 CLERK OF WORKS

10.1 The Employer shall be entitled to appoint a Clerk of Works whose primary
duty shall be to act as inspector of the Works on behalf of the Employer
under the direction of the Architect. The Contractor shall afford every
reasonable facility for the performance of that duty.
10.2 Where a Clerk of Works is appointed, the Employer may also appoint other
persons to assist the Clerk of Works in the exercise of his functions.
directions given by the assistants shall be deemed to be those of the Clerk
of Works unless otherwise stated in writing.
10.3 The employment of a Clerk of Works shall not relieve the Contractor from
any of his duties and obligations under the contract.
10.4 Directions given by the Clerk of Works in writing to the Contractor or to
his site agent shall be deemed to be the Architect’s instructions in respect
of;
10.4.1 The interpretation of Architects instructions, drawings, specifications
or bills of quantities.
10.4.2 The removal from the site of the work, materials or goods which are
in accordance with the contract.
10.4.3 Matters of urgency involving the safety or protection of persons or
property, and
10.4.4 Any other matter in respect of which the Architect is expressly
 empowered by these conditions to issue instructions and on which the
Architect has authorized in writing the Clerk of Works so to act.
10.5 Any other directions given by the Clerk of Works to the Contractor or the site
agent shall be of no effect.

11.0 LIABILITY AGAINST INJURY TO PERSONS AND PROPERTY

11.1 The Contractor shall be liable for and shall indemnify the Employer against

any expenses, liability, loss, claim or proceedings whatsoever arising under

any statute or at common law in respect of personal injury to or the death of

any person arising out of or in the course of or caused by the carrying out of

the Works, unless the injury or death is due to any act or neglect of the

Employer or of any person for whom the Employer is responsible.

11.2 Except for such loss or damage as is at risk of Employer under clause 14.0

or clause 15.0 of these conditions (if applicable), the Contractor shall be liable

for and shall indemnify the Employer against any expense , liability, loss,

claim or proceedings in respect of any injury or damage whatsoever to any

property real or personal insofar as such injury or damage arises out of or

by reason of the carrying out of the Works. Provided always that the injury

or damage is due to any negligence, omission or default of the Contractor his

servants or agents or of any sub-contractor his servants or agents.

12.0 INSURANCE AGAINST INJURY TO PERSONS ANDPROPERTY

12.1 Without prejudice to his liability to indemnify the Employer under clause 11.0

of these conditions, the Contractor shall maintain and shall cause any
sub-contractor to maintain;
12.1.1 Such insurances as are necessary to cover the liability of the
Contractor or as the case may be, of such sub-contractor, in respect
of personal injuries or deaths arising out of or in the course of or
caused by the carrying out of the Works, and
 12.1.2 Such insurances as are necessary to cover the liability of the
the Contractor or as the case may be, of such sub-contractor, in
respect of injury or damage to property real or personal arising out
of or in the course of or by reason of the carrying out of the Works
and caused by any negligence, omission or default of the
Contractor, his servants or agents or, as the case may be, of such
sub-contractor, his servants or agents.

12.2As and when he is reasonably required to do so by the Architect, the

Contractor shall produce and shall cause any sub-contractor to produce for

inspection by the Employer, documentary evidence that the insurances

required by sub-clause 12.1.1 and 12.1.2 are properly maintained but, on

occasion, the Employer may require to have produced for his inspection,

the policy or policies and the receipts in question.

12.3 The Contractor shall maintain in the joint names of the Employer and

the Contractor, insurances of such amounts of indemnity as may be

specified by way of provisional sum items in the contract bills in respect
of any expenses, liability, loss, claim, or proceedings which the Employer
may incur or sustain by reason of damage to any property other than the
Works caused by collapse, subsidence, vibration, weakening or removal
of support or lowering of ground water arising out of or in the course of or
by the carrying out of the Works, excepting damage;
12.3.1 Caused by the negligence, omission or default of the Contractor,
his servants or agents or any sub-contractor, his servants or agents
12.3.2 Attributable to errors or omissions in the designing of the Works.
12.3.3 Which can reasonably be foreseen to be inevitable having regard
to the nature of the work to be executed or the manner of its
execution.
12.3.4 Which is at the risk of the Employer under clause 14.0 or clause
15.0 of these conditions (if applicable).
12.3.5 Arising from a nuclear risk or war risk.

12.4 The insurances shall be placed with insures to be approved by the

Employer. The Contractor shall deposit with the Quantity Surveyor

the policy or policies and the receipts in respect of premiums paid.

12.5 Should the Contractor or any sub=contractor make default in insuring

or in continuing to insure as provided in sub-clauses 12.1.1, 12.1.2

and 12.3 of these conditions, the Employer may himself insure against

any risk with respect to which the default shall have occurred and may

deduct a sum equivalent to the amount paid by him in respect of

premiums from any money due or to become due to the Contractor.

13.0 INSURANCE OF THE WORKS (CONTRACTOR’SLIABILITY)

13.1 In the erection of new buildings, if the Contractor is required by the
contract to insure the Works, he shall before the commencement of the
works, procure insurances in the joint names of the Employer and the
Contractor against loss and damage by fire, earthquake, fire following
earthquake, lightening, explosion, storm, tempest, flood, bursting or
overflowing of water tanks, apparatus or pipes, aircraft and other aerial
devices or articles dropped therefrom, riot and civil commotion for the full
value thereof (plus the percentage, if any named in the appendix to these
conditions to cover professional fees). The insurances shall cover all the work
executed and all unfixed materials and goods delivered to, placed on or
adjacent to the Works and intended therefor but excluding temporary
buildings and equipment owned or hired by the Contractor or any
sub-contractor. He shall keep such work, materials and goods so insured
until practical completion of the Works.

13.2 Such Insurances shall be with insurers approved by the Employer. The
Contractor shall deposit the policy or policies and the receipts in respect of
premiums paid with the Quantity Surveyor. Should the Contractor make
default in insuring or continuing to insure as aforesaid, the Employer may
himself insure against any risk in respect of which the default shall have
occurred and deduct a sum equivalent to the amount paid by him in
respect of premiums from any money due or to become due to the
Contractor.
13.3 Provided always that if the Contractor shall independently of his
obligations under this contract maintain a policy of insurance which
 covers (inter alia) the said work, materials and goods against the aforesaid
percentage, if any), then the maintenance by the Contractor of such policy
shall, if the Employer’s interest is endorsed thereon, be a discharge of
the Contractor’s obligation to insure in the joint names of the Employer
and the Contractor.
13.4 As long as the Contractor is able to produce for inspection

documentary evidence that the said policy is properly endorsed and

maintained as and when he is reasonably required to do by the Architect,

then the Contractor shall be discharged from his obligation to deposit a

policy or policies and receipts with the Quantity Surveyor but on any

occasion, the Employer may require to have produced for his inspection

the policy and receipts in question.

13.5 Upon settlement of any claim under the insurance aforesaid, the
Contractor with due diligence shall restore work damaged, replace or
repair any unfixed materials or goods which have been destroyed or
injured, remove and dispose of any debris and proceed with the carrying
out and completion of the Works. All money received from such
insurances ( less only the aforesaid percentage, if any), shall be paid to
the Contractor y installments under certificates issued at the periods of
interim certificates stated in clause 34.0 of these conditions. The
Contractor shall not be entitled to any payment in respect of the
restoration of work damaged, the replacement and repair of any
unfixed materials or goods, and the removal and disposal of debris
other than the money received under the said insurances.

14.0 INSURANCE OF THEWORKS (EMPLOYER’SLIABILITY)

14.1 In the erection of new buildings, if the Employer is required by the
Contract to insure the Works, all work executed and all unfixed materials
and goods, delivered to, placed on or adjacent to the Works and intended
therefor but excluding temporary buildings and equipment owned or
hired by the Contractor any sub-contractor shall be at the sole risk of the
Employer as regards loss or damage by fire, earthquake, fire following
earthquake, lightning, explosion, storm, tempest, flood, bursting or
overflowing of water tanks, apparatus or pipes, aircraft and other aerial
 devices or articles dropped therefrom, riot and civil commotion. The
Employer shall maintain a proper policy of insurance against such risks
until practical completion of the Works.
The policy or policies and the receipts for the last premium paid for
the renewal shall, upon request, be produced for inspection by the
Contractor.
14.2 If the Employer shall at any time fail upon request to produce any
receipt showing such a policy as aforesaid to be effective, the Contractor
may in the name and on behalf of the Employer, insure all work executed
and all unfixed materials and goods as aforesaid against loss or damage
occasioned by the said contingencies and shall, upon production of the
receipt for any premium paid by him, be entitled to have its amount added
to the contract price.

14.3 If any loss or damage affecting the Works or any part thereof, or any
such unfixed materials or goods is occasioned by any one or more of the
said contingencies, then;
14.3.1 The occurrence of such loss or damage shall be disregarded in
computing any amounts payable to the Contractor under or by
virtue of the contract, and
14.3.2 The Contractor with due diligence shall restore work damaged,
replace or repair any unfixed materials or goods which have been
destroyed or injured, remove and dispose any debris and proceed
with the carrying out and completion of the Works.
14.3.3 The restoration of work damaged, the replacement and repair of
unfixed materials and goods and the removal and disposal of
debris shall be deemed to be a variation required by the Architect.

15.0 INSURANCE OF WORKS(WORKS OF ALTERATION etc)

15.1 In the Works of alteration, repairs or extensions, the Employer
shall solely take the risk for the existing structures together with all
the contents thereof owned by him or for which he is responsible and
the Works and all unfixed materials and goods intended therefor but
excluding temporary buildings and equipment owned or hired by the
Contractor or any sub-contractor.
The Employer shall maintain a proper policy of insurance against the
risks of loss or damage by fire, earthquake, fire following earthquake,
lightning, explosion, storm, tempest, flood, bursting or overflowing of
 water tanks, apparatus or pipes, aircraft and other aerial devices or
articles dropped therefrom, riot and civil commotion until practical
completion of the Works. The policy and the receipts for the last
premium paid for the renewal of the insurance cover shall, upon
request, be produced for inspection by the Contractor.
15.2 If the Employer shall at any time fail, upon request, to produce
any receipt showing such a policy as aforesaid to be effective, the
Contractor may in the name and on behalf of the Employer insure the
existing structures together with all the contents thereof, the Works
and all unfixed materials and goods as aforesaid against loss or
damage occasioned by the said contingencies. He shall have such
right of entry and inspection as may be required to make a survey
and inventory of the existing structures and contents therein. Upon
production of receipts for any premium paid by him, the Contractor
shall be entitled to have its amount added to the contract price.
15.3 If any loss or damage affecting the Works or any part thereof or any
such unfixed materials or goods is occasioned by any one or more of
the said contingencies, there;
15.3.1 The occurrence of such loss or damage shall be disregarded in
computing any amounts payable to the Contractor under or
by virtue of this contract.
15.3.2 If the contract is not terminated in accordance with
sub-clause 40.3, the Contractor with due diligence shall
reinstate or make good all loss or damage and proceed with
the carrying out and completion of the Works.
15.3.3 The Architect may issue instructions requiring the Contractor
to remove and dispose of any debris and
15.3.4 The reinstatement and making good of such loss or damage
and (when required) the removal and disposal of debris shall
be deemed to be a variation required by the Architect.

16.0 PERFORMANCE BOND

16.1 Before commencing the Works, the Contractor shall provide one
surety who must be an established bank or insurance company
to the approval of the Employer and who will be bound to the
Employer in the sum equivalent to ten per cent (10%) of the contract
price for the due performance of the contract until the certified date
 of practical completion. No payments shall be made to the Contractor
before the said bond is provided.
16.2 Where stated in the contract, the Employer shall provide one surety
who must an established bank or insurance company to the approval
of the Contractor who will be bound to the Contractor in the sum
equal to one half of the limit of retention fund for the due
performance of the Employer’s payment obligations until the final
certificate is issued and honoured.

17.0 COMPLIANCE WITH REGULATIONS, NOTICES, etc.

17.1 The Contractor shall comply with and give all notices required by any
enactment or regulation of any statutory or other authority or of
any public service company which has any jurisdiction with regard to
the Works or with whose system the same are or will be connected.
The Contractor, before making any variation from the contract
drawings, specifications or the contract bills necessitated by such
compliance, shall give to the Architect a written notice specifying
and giving the reason for such variation and the Architect may issue
instructions in regard thereto. If within fourteen days of having given
the said notice the Contractor does not receive any instructions in
regard to the matters therein specified, he shall proceed with the
work complying with the enactment or regulation in question and
any variation required by the Architect.
17.2 The Employer shall be responsible for obtaining all planning and
similar permits and approvals and shall serve all statutory and other
notices and shall pay and indemnify the Contractor against liability in
respect of any fees or charges (including any rates or taxes) legally
demandable under any enactment or regulation of any statutory or
other authority or any public service company in respect of the
Works and the site upon which the Works are to be constructed.
17.3 The Employer’s responsibility and liability under sub-clause 17.2
herein shall subsist irrespective of whether or not such fees, charges,
rates, taxes etc. are covered by way of prime cost or provisional sums
or arise as a result of the Architect’s instruction issued under clause
22.0 of these conditions.
17.4 In the event of the Employer failing to comply with the Provisionsof
sub-clause 17.2 herein, the Contractor may pay such fees, charges,
rates, taxes etc. Any costs or expenses incurred by the Contractor in
 making such payments shall be assessed by the Quantity Surveyor and
added to the contract price and if an interim certificate is issued after
the date of assessment, the said amount shall be added to the
amount which would otherwise be stated as due in such a certificate.

18.0 PROGRAMME OF WORKS

18.1 The Contractor shall, within the period stated in the appendix to
these conditions, submit for the approval of the Architect a
programme of Works in such form and detail as the Architect
shall reasonably prescribe.
18.2 Should actual progress not match the programme, the Contractor
shall amend the programme accordingly and submit the revisions
to the Architect. In the event that a Contractor fails to submit or
amend a programme within a reasonable time after being so
instructed by the Architect, the Employer may withhold half of the
amount due to the Contractor in subsequent payment certificates
until the default is rectified.
18.3 Neither the submission of the programme by the contractor nor
its approval by the Architect shall in any way relieve the Contractor
from any of his duties and obligations under the contract.

19.0 ACCESS TO THE WORKS

19.1 The Employer, the Architect, Quantity Surveyor, Engineers and other
agents of the Employer shall, at all reasonable times, have access to
the Works and to the workshops or other places where work is being
prepared for the contract.
19.2 Where work is to be prepared in workshops or other places of a
sub-contractor (whether nominated or not) the Contractor shall as far
as possible secure a similar right of access to those places for the
persons mentioned above.

20.0 POSSESSION OF SITE AND COMMENCEMENT OF WORKS

20.1 Within the period stated in the appendix to these conditions, the
Employer, or the Architect on his behalf, shall give possession of
site to the Contractor and such access as may be necessary to enable
the Contractor to commence and proceed with the Works in
accordance with the contract.
 20.2 On or before the date for commencement stated in the appendix
to these conditions, the Contractor shall commence the execution of
the Works and shall regularly and diligently proceed with the same
and complete on or before the date stated in the appendix to these
conditions as the date for practical completion.

21.0 LAVELLING AND STTING OUT

21.1 The Employer shall be responsible for the proper identification of the
site and establishment of boundary pegs and beacons and the
correctness of the datum levels on which the Architect’s drawings are
based. Such pegs, beacons and datum levels shall be identified to the
Contractor by the Employer or by the Architect on his behalf.
21.2 The Contractor shall take all necessary precautions to preserve such
pegs, beacons and datum levels and should they become disturbed he
shall replace or reinstate them at his cost.
21.3 The Architect shall determine any levels which may be required for
the execution of the Works and shall furnish to the Contractor, by
way of accurately dimensioned drawings, such information as shall
enable the Contractor to set out the Works.
21.4 The Contractor shall provide all necessary equipment and assistance
to enable the accuracy of the setting out to be checked by the
Architect. Checking of the setting out shall not relieve the Contractor
of his responsibility for the correctness thereof. Unless the Architect
shall otherwise instruct, the Contractor shall be responsible for and
entirely at his own cost correct any errors arising from his own
inaccurate setting out. If the Architect otherwise instructs, an
appropriate deduction shall be made from the contract price to
reflect the cost of such errors.

22.0 THE ARCHITECT’S INSTRUCTIONS

22.1 The Contractor shall (subject to sub-clause 22.3 and 22.4 0f this
condition) forthwith comply with all instructions issued to him by the
Architect in regard to any matter in respect of which the Architect is
expressly empowered by these conditions to issue instructions.
22.2 If within fourteen days after receipt of a written notice from the
the Architect requiring compliance with an instruction the Contractor
does not comply therewith, then the Employer may not employ and
 and pay other persons to execute any work whatsoever which may be
necessary to give effect to such instructions.
All costs incurred in connection with such employment shall be
recoverable from the Contractor by the Employer as a debt or may be
deducted by him from any money due or to become due to the
Contractor under this contract.
22.3 Upon receipt of what purports to be an instruction issued to him by
the Architect, the Contractor may request the Architect to specify in
writing the provisions of these conditions which empower the issue
of the said instruction. The Architect shall comply with any such
request, and if the Contractor shall thereafter comply with the said
instructions, then the issue of the same shall be deemed for all the
purposes of this contract to have been empowered by this conditions.
22.4 All instructions issued by the Architect shall be in writing. Any
instruction issued orally shall be of no immediate effect, but shall
be confirmed in writing by the Contractor to the Architect within
seven days. If not dissented from in writing by the Architect within
seven days from receipt of the Contractor’s confirmation, the oral
instruction shall take effect as from the expiration of the latter said
seven days. Provided always that;
22.4.1 If the Architect shall within seven days of giving such an oral
instruction himself confirm the same in writing, then the
Contractor shall not be obliged to confirm as aforesaid and
the aforesaid and the said instruction shall take effect as
from the date of the Architect’s confirmation.
22.4.2 If neither the Contractor nor the Architect shall confirm
such an oral instruction in the manner and at the time
aforesaid, but the Contractor shall nevertheless comply with
the same, the Architect may confirm the same in writing at
any time prior to the issue of the final certificate and the
said instruction shall thereupon be deemed to have taken
effect on the date on which it was issued.
22.5 Any instructions given directly by the Employer to the Contractor be
of no immediate effect but shall be confirmed by the Architect within
seven days, failing which the Contractor shall confirm the same in
writing in the same manner as is provided for in sub-clause 22.4. If
confirmed by the Contractor, such instructions shall be deemed to
be the Architect’s instructions.
23.0 SPECIFICATION OF GOODS, MATERIALS AND WORKMANSHIP

23.1 All materials, goods and workmanship shall so far as procurable be

of the respective kinds and standards described in the contract bills,
the drawings and the specifications.

23.2 The Contractor shall, upon request by the Architect, furnish him
with trade catalogues or manufacture’s brochures to prove that the
materials and goods comply with sub-clause 23.1 of this condition.

23.3 If the Contractor shall fail to obtain materials or goods of the

respective kinds and standards shown in the contract drawings and
described or referred to in the contract bills and specifications, he
shall forthwith give to the Architect a written notice specifying the
non-availability. The Architect shall within fourteen days of receipt
of such notice issue instructions in regard thereto.

23.4 Where not so described, the materials, goods and workmanship shall
be to a standard appropriate to the Works and to the reasonable
satisfaction of the Architect.

23.5 Notwithstanding the generality of his powers, if any work, materials

or goods are not in accordance with the contract, the Architect may in
his discretion allow any or all such work, materials or goods to remain
in the Works. If so allowed, an appropriate deduction shall be
assessed by the Quantity Surveyor and the contract price adjusted
accordingly.

23.6 The Architect may issue instructions requiring the Contractor to open
up for inspection any work covered up or to arrange for or carry out
tests of any materials or goods (whether or not already incorporated
in the Works) or of any executed work. The cost of such opening up
testing, together with the cost of making good in consequence
thereof, shall be added to the contract price unless provided for in
the contract bills or unless the inspection or test shows that the work,
materials or goods are not in accordance with the contract.

23.7 Where materials or goods are specified by a trade or band name, the
Contractor shall not be liable for any latent defects therein, if any. The
Contractor shall be deemed to have assigned to the Employer any
 right of action that may exist against the supplier or the manufacturer
in case of failure from such defects

23.8 The Architect may issue instructions in regard to the removal from
site of any work, materials or goods which are not in accordance
with the contract.

24.0 SAMPLES AND TESTS

24.1 The Contractor shall arrange for and furnish to the Architect, samples
of any materials, goods or workmanship and perform any tests that
may be called for by the Architect for his approval. Any samples and
tests approved by the Architect shall be deemed to represent the
minimum standard for the part of the Works to which they apply.

24.2 Where the Contractor fails to comply with the provisions of

sub-clause24.1, the Architect may arrange with other parties to
provide the requisite samples or carry out the necessary tests. The
Contractor shall be obliged to conform with standards set by such
samples or tests. All costs and expenses incurred in the procurement
of such samples and tests shall be borne by the Contractor.

25.0 ROYALTIES AND PATENT RIGHTS

25.1 All royalties or other sums payable in respect of the supply and use
of any patented articles, processes or inventions in carrying out the
Works as described by or referred to in the contract bills and the
specifications, shall be deemed to have been included in the contract
price.

25.2 The Contractor shall indemnify the Employer from and against all
claims, proceedings, damages, costs and expenses which may be
brought or made against the Employer or to which he may be put by
reason of the Contractor infringing or being held to have infringed any
patent rights in relation to any such articles, processes or inventions.

25.3 Where the Contractor shall supply and use in carrying out the Works
any patented articles, inventions or processes in compliance with
Architect’s instructions, the Contractor shall not be liable in respect
of any infringement or alleged infringement of any patent rights in
relation to any such articles, processes and inventions. All royalties,
 damages or other money which the Contractor may be liable to pay
to the persons entitled to such patent rights shall be added to the
contract price.

26.0 ASSIGNMENT

26.1 Neither the Employer nor the Contractor shall, without the written
consent of the other, assign this contract. Provided that the approval
of assignment shall not relieve either party of his obligations for the
part of the contract already performed or the part not assigned.

26.2 It shall be a condition of any assignment that the employment of any

assigns shall terminate immediately upon the termination (for
whatever reason) of the Contractor’s employment under the contract.

27.0 SUBLETTING

27.1 The Contractor shall not sublet the whole of the Works without the
written consent of the Employer and the Architect. He may sublet
part of the Works upon giving notice to the Architect.

27.2 The Contractor shall remain liable under the contract for all work
sublet under this clause as if he had himself carried out such work.

27.3 It shall be a condition in any sub-letting, that the employment of

the sub-contractor shall terminate forthwith upon the termination
(for whatever reason) of the Contractor’s employment under the

28.0 SUSPENSION OF THE WORKS BY THE ARCHITECT

28.1 The Architect may issue instructions to postpone the carrying

out of any work included in this contract.

28.2 The Architect ,ay issue instructions to suspend the carrying out of
any work included in this contract, if;
28.2.1 The Contractor fails to comply with an Architect’s I
instructions requiring the dismissal from the Works
of any person deployed thereon, or
28.2.2 There arises any matters of urgency involving the safety or
protection of persons or property, or
28.2.3 The Contractor fails to comply with the contract provisions
to insure the Works; or
 28.2.4 The Contractor fails to comply with an Architect’s
instruction in regard to the removal from the site of any
work, materials or goods which are not in accordance with
the contract, or
28.2.5 The Contractor assigns the contract or sub-lets the whole of
the Works without the written consent of the Employer.

28.3 Except for the suspension under sub-clause 28.2.2, all other
instructions to suspend shall be accompanied by a seven days notice.

28.4 Instructions for postponement or suspension shall be copied to

the Employer

28.5 The suspension shall not take effect if the matter occasioning the
notice is rectified within the period of the notice. Such suspension
shall cease immediately the matter occasioning the notice is rectified.

28.6 Should the Works be suspended under this clause, the Contractor
shall be liable for all expenses arising therefrom.

29.0 SUSPENSION OF THEWORKS BY THE CONTRACTOR

29.1 The Contractor may suspend the carrying out of the Works if;
29.1.1 He has not received a payment certificate which he
applied for in accordance with clause 34.0 of these
conditions and the default continues for thirty days after
expiry of the stated period, or
29.1.2 He has not received payment within the period for
honouring certificates provided in clause 34.0 of these
conditions and the default continues for thirty days after
expiry of the stated period, or
29.1.3 The Contractor notifies the Architect that it has become
impossible or impracticable to procure goods and materials
for the Works for reasons beyond the Contractor’s control
and the Architect has not given appropriate instructions in
accordance with sub-clause 23.2, or
29.1.4 Delays occurs in the nomination or renomination of a sub-
contractor or supplier which delay materially affects the
progress of the Works., or
29.1.5 Delay occurs in the appointment of a replacement Architect
 , Quantity Surveyor or Engineer which delay materially
affects the progress of the Works.

29.2 Where the Constructor intends to suspend the carrying out of the
Works, he shall give the Employer a seven days notice in writing to
that effect, with a copy to the Architect.

29.3 The Contractor shall not suspend the carrying out of the Works if
the matter occasioning the notice is rectified within the period of the
notice. Such suspensions shall cease immediately the matter
occasioning the notice is rectified.

29.4 During the period of suspension either under clause 28.0 or herein
the Contractor shall properly protect and secure the Works to the
reasonable satisfaction of the Architect.

30.0 VARIATIONS

30.1 The term ‘variation’ as used in this conditions shall mean the
alteration or modification of the design, quality or quantity of the
Works as shown upon the Contract drawings and described by or
referred to in the contract bills and specifications and includes:
30.1.1 The addition, omission or substitution of any item of work.
30.1.2 The alteration of the kind or standard of any of the materials
or goods to be used in the Works.
30.1.3 The removal from the site of work, materials or goods
brought upon the Works by the Contractor for the
purposes of the Works other than work, materials, or
goods which are not in accordance with the contract.
30.1.4 The issue of instructions by the Architect in regard to the
expenditure of prime cost and provisional sums included in
the contract bills and or prime cost sums which arise as a
result of instructions issued in regard to the expenditure of
provisional sums.

30.2 The Architect may issue instructions requiring a variation and he may
sanction in writing any variation made by the Contractor otherwise
than pursuant to an instruction of the Architect. No variation required
by the Architect or subsequently sanctioned by him shall vitiate this
contract, provided that no such instructions shall substantially change
 the scope or object of the contract without the consent of the
Employer and the Contractor.

30.3 If the net value of all variations should equal 15% of the builders
work, the Architect shall not issue any further instructions requiring
a variation for additional work without the consent of the Employer
and the Contractor.

30.4 All instructions for variations shall be copied to the Employer.

30.5 All variations required by the Architect or subsequently sanctioned by

the Architect or subsequently sanctioned by him in writing and all
work executed by the Contractor for which provisional sums are
included in the contract bills (other than work for which a tender
made under sub-clause 31.11 of these conditions has been accepted)
shall be assessed by the Quantity Surveyor who shall give to the
Contractor an opportunity of being present at the time of such
assessment and of taking such notes and measurements as the
Contractor may require.

30.6 The valuation of variations and work executed by the Contractor for
for which a provisional sum is included in the contract bills (other
work for which a tender has been accepted as aforesaid) unless
otherwise agreed, shall be made in accordance with the following
rules;
30.6.1 The prices in the contract bills shall determine the valuation
of work of similar character executed under similar
conditions as work priced therein.
30.6.2 The said prices, where work is not of a similar character or
executed under similar conditions as aforesaid, shall be the
basis of prices for the same do far as may be reasonable,
failing which a fair valuation thereof shall be made.
30.6.3 Where work cannot properly be measured and valued, the
Contractor shall be allowed day-work rates on the prices
prevailing when such work is carried out (unless otherwise
provided in the contract bills). The day-work rates will be;
30.6.3.1 Rates, if any, inserted by the Contractor in the
bills or in a schedule of rates, or
30.6.3.2 When no such rates have been inserted, at rates
to be agreed between the Quantity Surveyor and
 the Contractor.
30.6.3.3 Vouchers specifying the time daily spent upon the
work (and if required by the Architect, the
workmen’s names) the equipment and the
materials used shall be delivered for verification
to the Quantity Surveyor not later than the end
of the week following that in which the work
was executed.
30.6.4 The prices in the contact bills shall determine the valuation
of items omitted. Provided that if omissions substantially
vary the conditions under which any remaining items of
work are carried out, the prices for such remaining items
shall be valued as set out in sub-clause 30.6.2.

30.7 Effect shall be given to the measurement and valuation of

variations under sub-clause 30.6 of this condition interim
certificates and by adjustment of the contract price. Effect shall
also be given to the measurement and valuation of work for
which a provisional sum is included in the contract bills under the
said sub-clause in interim certificates and by adjustment of the
contract price in accordance with sub-clause 34.19.

30.8 If upon written application being made by the Contractor, the

Quantity Surveyor is of the opinion that a variation or the
execution by the Contractor of work for which a provisional sum
is included in the contact bills (other than work for which a tender
made under clause 31.0 of these conditions has been accepted)
has involved the Contractor in direct loss and or expense for
which he would not be reimbursed by payment in respect of a
valuation made in accordance with the rules contained in
sub-clause 30.6 of this condition and if the said application is
made with supporting details within thirty days of the loss or
expense having been incurred, the Quantity Surveyor shall assess
the amount of such loss or expense. Any amount so assessed from
time to time shall be added to the contract price, and if an interim
certificate is issued after the date of assessment the said amount
shall be added to the amount which would otherwise be stated as
due in such certificate.
 30.9 Should any part of the Works be omitted from the contract and ,
the part is carried out by others, the Contractor shall be entitled
to reimbursement of the profit he would have made and he
carried out the omitted part. Such profit or loss shall be assessed
by the Quantity Surveyor and if an interim certificate is issued
after the date of assessment the said amount shall be added to
the amount which would otherwise be stated as due in such a
certificate.

30.10 No instructions for variations shall be issued after the practical

completion certificate is issued without the consent of the
Contractor.

30.11 Where a variation is necessitated by the default or breach of the

contract by the Contractor, any additional cost attributable to
such a variation shall be borne by the Contractor.

30.12 Except as expressly stated in the contract, the Architect shall have
no authority to alter or amend the terms and conditions of the
contract or to relieve the Contractor of any of his obligations
under the contract.

30.13 Where the Architect, with the consent of the Employer and the
Contractor, issues instructions requiring a variation beyond the
limit provided in sub-clause 30.3, the Employer may require an
additional performance bond over and above that provided under
sub-clause 16.1. The Contractor shall be reimbursed for the
provision of the additional bond pro-rata to the amount priced
for the bond in the contract.

30.14 The Architect shall not issue an instruction requiring a variation

for additional work exceeding 0.01% of the contract price without
the prior approval of the Employer unless otherwise
communicated by the Employer to the Architect and to the
Contractor.

31.0 NOMINATEDSUB-CONTRACTORS

31.1 The following provisions shall apply where prime cost sums are
included in the contract bills or arise as a result of Architect’s
instructions given in regard to the expenditure of provisional sums
 in respect of persons to be nominated by the Architect to supply
and fix or install materials or goods or to carry out work.

31.2 Such sums shall be expended in favour of such persons as the

Architect shall instruct, with the consent of the Employer, and all
specialists or others who are nominated by the Architect are
hereby declared to be sub-contractors employed by the
Contractor, and are referred to in these conditions as ‘nominated
sub-contractors’.

31.3 The Architect shall not nominate any person as a sub-contractor

against whom the Contractor shall make reasonable objection.

31.4 The nominated sub-contractor shall carry out and complete the
sub-contract works in every respect to the reasonable satisfaction
of the Contractor and of the Architect and in conformity with all
the reasonable directions and requirements of the Contractor.

31.5 The Contractor and the nominated sub-contractor shall enter into
a sub-contract agreement which provides (inter alia):
31.5.1 That the nominated sub-contractor shall observe, perform
and comply with all the provisions of this contract on the
part of the Contractor to be observed, performed and
compiled with (other than clause 13.0 of these conditions
, if applicable) so far as they relate and apply to the
sub-contract works or to any portion of the same.
31.5.2 That the nominated sub-contractor shall indemnify the
Contractor against the same liabilities in respect of the
sub-contract works as those for which the Contractor is
liable to indemnify the Employer under this contract.
31.5.3 That the nominated sub-contractor shall indemnify the
Contractor against claims in respect of any negligence,
omission or default of such sub-contractor, his servants
or agents or any misuse by him or them of any
scaffolding or other equipment, and shall insure himself
against any such claims and produce the policy or
policies and receipts in respect of premiums paid as
and when required by either the Architect or the
Contractor.
31.5.4 That the sub-contract works shall be completed within
 the period or (where they are to be completed in
sections) periods therein specified.
31.5.5 That the Contractor shall not without the written
consent of the Architect, grant any extension of time
for the completion of the sub-contract works or any
section thereof, and that the Contractor shall inform
the Architect of any representation made by the
nominated sub-contractor as to the cause of any delay
in the progress or completion of the sub-contract works
or any section thereof.
31.5.6 That if the nominated sub-contractor shall fail to
complete the sub-contract works or (where the
sub-contract works are to be completed in sections) any
section thereof, within the period therein specified or
within any extended time granted by the Contractor
with the written consent of the Architect and the
certifies in writing to the Contractor that the same ought
reasonably so to have been completed, the nominated
sub-contractor shall pay or allow the Contractor either a
sum calculated at the rate therein agreed as liquidated
damages for the period during which the said works or
any section thereof, as the case may be, shall remain or
have remained incomplete or (where no such rate is
therein agreed), a sum equivalent to any loss or damage
suffered or incurred by the Contractor and caused by
the failure of the nominated sub-contractor as
aforesaid.

31.5.7 That payment in respect of any work, materials or

goods comprised in the sub-contract shall be made
within fourteen days after the receipt by the Contractor
of the sum to which the Contractor shall be entitled by
virtue of the Architect’s certificates issued under clause
34.0 of these conditions which states as due an amount
calculated by including the total value of such work,
materials or goods, and shall when due be subject to
retention by the Contractor of the sums stated in
sub-clause 31.5.8 of this condition.
31.5.8 That the Contractor shall retain from the sum directed
 by the Architect as having been included in the
calculation of the amount stated as due in any
certificate issued under clause 34.0 of these conditions
in respect of the total value of work, materials or goods
executed or supplied by the nominated sub-contractor
the percentage of such value named in the appendix to
these conditions as percentage of certified value
retained up to a total amount not exceeding a sum
bears the same ratio to the sub-contract price as the
unreduced sum named in the appendix to these
conditions as the limit of retention fund bears to the
contract price.

31.5.9 That the Contractor’s interests in any sums so retained

(by whomsoever held) shall be fiduciary as trustee for
the nominated sub-contractor (but without obligation
to invest), and that the nominated sub-contractor’s
beneficial interest in such sums shall be subject only to
the right of the Contractor to have recourse thereto from
time to time for payment of any amount which he is
entitled under the sub-contract to deduct from any sum
due or to become due to the nominated sub-contractor;
and that if and when such sums or any part thereof are
released to the nominated sub-contractor, they shall
be paid in full.

31.5.10 That the Employer, the Architect, Quantity Surveyor,

Engineers and other agents of the Employer, shall have
a right of access to the workshops and other places of
the nominated sub-contractor where work is being
prepared as provided for in clause 19.0 of these
conditions.

31.6 The Architect shall direct the Contractor of the total value of the work
, materials or goods executed or supplied by a nominated
sub-contractor included in the calculation of the amount stated as
due in any certificate issued under clause 34.0 of these conditions
and shall forthwith inform the nominated sub-contractor in writing of
the amount of the said total value. The sum representing such total
 value shall be paid by the Contractor within fourteen days after
receipt by the Contractor of the sum to which the Contractor shall
be entitled by virtue of the certificate less only;
31.6.1 Any retention money which the Contractor may be entitled
to deduct under the terms of the sub-contract, and
31.6.2 Any sum to which the Contractor may be entitled in respect
of delay in the completion of the sub-contract works or any
section thereof, and
31.6.3 Amounts already paid under previous certificates.

31.7 Before issuing any certificate under clause 34.0 of these conditions,
the Architect may request the Contractor to furnish to him reasonable
proof that all amounts stated as due in previous certificates in respect
of the total value of the work, materials or goods executed or
supplied by any nominated sub-contractor have been duly paid and if
the Contractor fails to comply with any such request the Architect
shall issue a certificate to that effect and thereupon the Employer
may himself pay such amounts to any nominated sub-contractor
concerned and deduct the same from any money due or to become
due to the Contractor.

31.8 The Contractor shall not grant to any nominated sub-contractor any
extension of the period within which the sub- contract works, or
(where the sub-contract works are to be completed without the
written consent of the Architect. Provided always that the Contractor
shall inform the Architect of any representations made by the
nominated sub-contractor as to the cause of any delay in the progress
or completion of the sub-contract works or of any section thereof.
The consent of the Architect shall not be unreasonably withheld.
Any extension of the time granted under this clause shall be copied to
the Employer.

31.9 If any nominated sub-contractor fails to complete the sub-contract

works or (where the sub-contract works are to be completed in
sections) any section thereof within the period specified in the
sub-contract or within any extended time granted by the Contractor
with the written consent of the Architect, then if the same ought
reasonably so to have been completed, the Architect shall certify in
writing accordingly. Immediately upon the issue , the Architect shall
 send a copy of any such certificate to the nominated sub-contractor
and to the Employer.

31.10 If the Architect desires to secure final payment to any nominated

sub-contractor before final payment is due to the Contractor, and if
such sub-contractor has satisfactorily indemnified the Contractor
against any latent defects, the the Architect may in an interim
certificate include an amount to cover the said final payment, and
Contractor shall pay to such nominated sub-contractor the amount
so certified within fourteen days of receipt of the payment. Upon
such final payment, the amount named in the appendix to these
conditions as limit of retention fund shall be reduced by the sum
which bears the same ratio to the said amount as does such
sub-contractor’s sub-contract price to the contract price, and save
for latent defects, the Contractor shall be discharged from all liability
for the work, materials or goods executed or supplied by such
sub-contractor under the sub-contract to which the payment relates.

31.11 Where the Contractor in the ordinary course of his business directly
carries out works for which prime cost sums are included in the
contract bills and where he has so informed the Architect, the
Contractor shall be permitted to tender for the same or any of them
but without prejudice to the Employer’s right to reject the lowest or
any tender.

31.12 Where a prime cost sum arises under Architect’s instructions issued
under sub-clause 30.1.4, of these conditions, it shall be deemed for
the purposes of this sub-clause to have been included in the contract
bills.

31.13 It shall be a condition of any tender accepted under sub-clause 31.11

that clause 30.0 of these conditions shall apply in respect of the items
of work included in the tender as if the reference therein to the
contract drawings, specifications and the contract bills were
references to the equivalent documents included in or referred to in
the tender.

31.14 Where the terms of a contract between the Contractor and a

nominated sub-contractor so require or the Architect shall so
authorize in writing, the Contractor shall make advance payment to
 the sub-contractor before delivery of the materials or goods, and the
Contractor shall be allowed simple interest for the period of such
advance payment calculated at the commercial bank lending rate in
force at the time of the advance until the value of the said materials
or goods as included in a certificate in accordance with clause 34.0.

31.15 If a nominated sub-contractor terminates the sub-contract or the

Contractor terminates the sub-contract on the advice of the Architect,
the Architect shall make a further nomination of the sub-contractor
as may be necessary to carry out and complete the work left
incomplete by the sub-contractor whose employment has been
terminated. Any additional costs arising therefrom shall be borne by
the Employer.

31.16 Provided that where a nominated sub-contractor terminates the

sub-contractor terminates the sub-contract as a result of a default
by the Contractor, or the Contractor terminates the sub –contract
without the written advice of the Architect, the Contractor shall
be liable to the Employer for any additional costs arising therefrom.

31.17 Where a nominated sub-contract provides a defects liability period

which extends beyond the Contractor’s defects liability period, the
Contractor’s obligations and liabilities in connection with the defects
of the nominated sub-contract shall nevertheless terminate at the
end of the Contractor’s defects liability period. The remaining portion
of the nominated sub-contractor’s defects liability period shall be
subject to a direct agreement between the Employer and the
nominated sub-contractor and shall not form part of this agreement.

31.18 Where a sub-contractor is required to give a guarantee or warranty

relating to the sub-contract works such guarantee or warranty shall
be assigned by the sub-contractor to the Employer prior to the issue
of the final certificate.

31.19 The Employment of a nominated sub-contractor under these

conditions shall terminate forthwith upon the termination (for any
reason) of the Contractor’s employment under the contract.

31.20 Neither the existence nor the exercise of the foregoing powers nor
anything else contained in these conditions shall render the
Employer in any way liable to any nominated sub-contractor.
32.0 NOMINATED SUPPLIERS

32.1 The following provisions shall apply where prime cost sums are
included in the contract bills, or arise as a result of Architect’s
instructions given in regard to the expenditure of provisional
sums in respect of any materials or goods to be supplied by others
and fixed or installed by the Contractor.

32.2 Such sums and the term prime cost, when included or arising as
aforesaid, shall be understood to mean the net cost to be defrayed as
a prime cost after deducting any trade or other discount and shall
include customs duty or other taxes, and the cost of packing, carriage
and delivery. Provided that, where in the opinion of the Architect the
Contractor has incurred expense for special packing or special
carriage, such special expenses shall be allowed as part of the sums
actually paid by the Contractor.

32.3 Such sums shall be expended in favour of such persons as the

Architect shall instruct. All specialists, merchants, tradesmen or
others who are so nominated by the Architect to supply materials or
goods are hereby declared to be suppliers to the Contractor and are
referred to in these conditions as ‘nominated suppliers’.

32.4 The Architect shall not nominate as a supplier, a person who will not
enter in to a contract of sale which provides (inter alia):
32.4.1 That the materials or goods to be supplied shall be to the
reasonable satisfaction of the Architect.
32.4.2 That the nominated supplier shall make good by replacement
or otherwise any defects in the materials or goods supplied
which appear within such period as is therein stated and
shall bear any expenses reasonably incurred by the
Contractor as a direct consequence of such defects provided
that:-
32.4.2.1 Where the materials or goods have been used or
fixed such defects are not such that examination
by the Contractor ought to have revealed them
before using or fixing, and
32.4.2.2 Such defects are due solely to defective
workmanship or defects in the materials or
goods supplied and shall not have been caused
 by improper storage by the Contractor or by
misuse or by any act or neglect of either the
Contractor, the Architect or the Employer or by
any person or persons for whom they may be
responsible.
32.4.3 That delivery of the materials or goods supplied shall be
commenced and completed at such times as the Contractor
may reasonably direct.
32.4.4 All payments by the Contractor for materials or goods
supplied by a nominated supplier shall be in full and shall be
paid within thirty days of the end of the month during which
delivery is made. Failure by the Contractor to pay the
nominated supplier as stipulated shall entitle the Employer
any money due or to become due to the Contractor.
32.4.5 Where the terms of a contract between the Contractor and a
nominated supplier so require, or the Architect shall so authorize in writing, the Contractor
shall make advance payments to the supplier before delivery of the materials or
goods. The Contractor shall be allowed simple interest for period of such advance payment
calculated at the commercial bank lending rate in force at the time of the
advance until the value of the said materials or goods is included in a certificate in accordance
with clause 34.0.

33.0 WORK BY OTHER PERSONS ENGAGEDBY THE EMPLOYER.

33.1 The Contractor shall permit the carrying out of work not forming part
of this contract, but described in the contract bills, by the Employer or
by other persons employed or otherwise engaged by him.

33.2 Where the work is not described in the contract bills, the Employer
may arrange the carrying out of such work only with the consent of
the Contractor, which consent shall not be unreasonably withheld.

32.3 Every person employed or otherwise engaged by the Employer under

this clause shall be deemed to be a person for whom the Employer is
responsible and not a sub-contractor.

34.0 PAYMENTS

34.1 At intervals stated in the appendix to these conditions, the Contractor

shall submit to the Quantity Surveyor an application for payment
giving sufficient details of the work done and the materials on site
 and the amounts which the Contractor considers himself to be
entitled to. The application for payment shall be copied to the
Architect and the Employer.

34.2 Upon receipt of the application and after verifying the amounts, the
Quantity Surveyor shall prepare within seven days an interim
valuation of work done and materials on site during the relevant
period and forward the same to the Architect. The valuation shall be
copied to the Employer.

34.3 The Architect shall issue an interim payment certificate within seven
days from the date of receipt of the Quantity Surveyor’s valuation.
The payment certificate shall be copied to the Employer.

34.4 Neither the Quantity Surveyor nor the Architect shall be bound to
issue a valuation or a payment certificate, as the case may be, whose
value is less than the amount stated in the appendix to these
conditions as the minimum amount of a payment certificate before
the issue of the certificate of practical completion of the whole of the
Works or any section thereof.

34.5 The Contractor shall, on presenting any interim payment certificate

to the Employer, be entitled to payment thereof within fourteen days
from presentation.

34.6 If a certificate remains unpaid beyond the period for honouring

certificates stated herein, the Employer shall pay or allow to the
Contractor simple interest on the unpaid amount for the period of
default. The Quantity Surveyor shall assess the amounts to be
included in an interim certificate as the interest due for the delay and
if an interim certificate is issued after the date of any such assessment
,the amount shall be added to the amount which would otherwise be
stated as due in such a certificate.

34.7 The payment of interest for late payment of certified sums shall not
relieve the Employer from his obligation to honour payment
certificates when due.

34.8 The Architect may, be a subsequent or supplementary certificate,

make any correction, amendment or modification to any previously
issued certificate and shall have the authority, if work is not carried
 out to his satisfaction, to omit or reduce the value of such work in any
certificate.

34.9 The amount stated as due in an interim certificate shall, subject to

any agreement between the parties as to stage payments, be the
total value of work properly executed and the value of materials and
goods required for use in the Works which have been delivered to the
Works.

34.10 The Architect may, with consent of the Employer, include in an

interim certificate the value of materials and goods which have been
stored elsewhere in safe custody by the Contractor.

34.11 Provided that such interim certificate shall only include the value of
such materials and goods as and from such time as they are
reasonably, properly and not prematurely brought to the Works or
stored as aforesaid and are adequately stored and protected against
weather and other casualties and are covered by proper insurance
and have passed to the legal ownership of the Contractor. There shall
deducted from the amount of the certificate such sums as may be
retained by the Employer as hereinafter provided and less any
amounts previously certified under this clause.

34.12 The Employer may retain the percentage of the total value of the
work,, materials and goods referred to sub-clause 34.9 of this
condition which is named in the appendix to these conditions as
percentage of certified value retained. Provided always that when the
sum of the amounts so retained equals the amount named in the said
appendix as limit of retention fund, or that amount as reduced
pursuant to sub-clause, 31.10, 42.7 and 42.8 of these conditions, as
the case may be, no further amount shall be retained by virtue of this
clause.

34.13 Where any certificate of which the Contractor has received payment
in accordance with sub-clause 34.5 of these conditions, includes the
value of any unfixed materials and goods required for use in the
Works, such materials and goods shall become the property of the
Employer and shall not be removed without the authority of the
Architect except for use upon the Works. The Contractor shall remain
 responsible for any loss or damage to such materials and goods
whether the same are stored on site or elsewhere.

34.14 The following amounts, when included in interim certificates, shall

not be subject to retention.
34.14.1 Payment of taxes, levies and charges in respect of which the
Contractor pays or indemnifies the Employer under the
provisions of sub-clause 17.4 of these conditions
34.14.2 Payment made for inspections and tests carried out by the
Contractor or by third parties under clauses 23.0 and 24.0.
34.14.3 Payment to the Contractor for the provision of a
performance bond under clause 16.1 of these conditions.
34.14.4 Payment to the Contractor for the provision of insurances
under clauses 12.0, 13.0, 14.0 and 15.0 of these conditions,
as applicable.
34.14.5 Payment for goods and materials supplied by nominated
suppliers under clause 32.0.
34.14.6 Any amounts to which the Contractor is entitled in
accordance with sub-clause 34.28.

34.15 The Employer and the Contractor may agree to open a joint interest
earning bank account where all retention money shall be deposited.
Such account, if opened, shall be operated jointly by the Employer
and the Contractor. All interest accruing to the deposited retention
fund shall be periodically released to the Contractor at the times
agreed between the parties and inserted in the appendix to these
conditions.

34.16 The amounts retained by virtue of sub-clause 34.12 of this condition

shall be subject to the following rules;
34.16.1 The Employer’s interest in any amount so retained shall be
fiduciary as trustee for the Contractor (but without
obligation to invest) an the Contractor’s beneficial interest
therein shall be subject only to the right of the Employer to
have recourse thereto from time to time for payment of any
amount which he is entitled under the provisions of this
contract to deduct from any sum due or to become due to
the Contractor.
34.16.2 On the issue of the certificate of practical completion, the
 Architect shall issue a certificate for one half of the total
amount then so retained and the contract shall, on
presenting any such certificate to the Employer, be entitled
to payment of the said amount within fourteen days from
presentation.
34.16.3 On the expiration of the defects liability period named in
the appendix to these conditions, or in the issue of
certificate of completion of rectification of defects,
whichever is the later, the Architect shall issue a certificate
for the balance of the amount then so retained and the
Contractor shall be entitled to payment of the said balance
within fourteen days from presentation.

34.17 The measurement and valuation of the Works shall be completed

within the period of final measurement and valuation stated in the
appendix to these conditions calculated from the date of practical
completion, and the Contractor shall be supplied with a copy of the
final account not later than the end of the said period and before the
issue of the final certificate under sub-clause 34.21 of these condition.

34.18 Either before or within a reasonable time after practical completion of

the Works, the Contractor shall send to the Quantity Surveyor all
document and calculations necessary for the purposes of the
computations required by these conditions including all documents
relating to the accounts of nominated sub-contractors and nominated
suppliers. The Quantity Surveyor may request the Contractor to
submit further documents as he may deem necessary for the
computation of the final account.

34.19 In the settlement of accounts, the amounts paid or payable under

the appropriate contracts by the Contractor to nominated sub-
contractors or nominated suppliers, the amount paid or payable
by virtue of clause 17.0 of these conditions in respect of fees or
charges for which a provisional sum is included in the contract bills,
amounts paid or payable in respect of any insurances maintained in
compliance with sub-clause 12.3 of these conditions, the tender price
(or such other sum as may be appropriate in accordance with the
terms of the tender) for any work for which a tender made under sub-
clause 31.11 of these conditions is accepted and the value of any
 work executed by the Contractor for which a provisional sum is
included in the contract bills, shall be set against the relevant prime
cost sum or provisional sum included in the contract bills or arising
under Architect’s instructions issued under clause 30.1.4 of these
conditions as the case may be. The balance, after allowing in all cases
pro rata for the Contractor’s profit at the rates shown in the contract
bills, shall be added to or deducted from the contract price. Provided
that no deduction shall be made in respect of any damages paid or
allowed to the Contractor by any sub-contractor or supplier.

34.20 The final account shall be agreed between the Quantity Surveyor, the
Contractor and the Architect. If the Contractor does not assign the
final account within thirty days after being so requested to do, the
Architect may issue the final certificate based on the final account
prepared by the Quantity Surveyor. The final document shall be
copied to the Employer.

34.21 So soon as the Quantity Surveyor has prepared the final account but
before the expiration of sixty days from the end of the defects liability
period stated in the appendix to these conditions, or from completion
of rectification of defects under clause 41.6 of these conditions, or
from receipt by the Quantity Surveyor of the documents referred to in
paragraph 34.18 of this condition, whichever is the latest, the
Architect shall issue the final certificate.
The final certificate shall state;
34.21.1 The sum of the amounts certified to the Contractor under
interim certificates and the amount named in the said
appendix as limit of retention fund, and
34.21.2 The contract price adjusted as necessary in accordance with
the terms of these conditions, and as reflected in the final
account.
34.21.3 The difference (if any) between the two sums shall be
expressed in the said certificate as a balance due to the
Contractor from the Employer or to the Employer from the
Contractor, as the case may be. Subject to any deductions
authorized by these conditions, the said balance as from
the fourteenth day after presentation of the final
certificate by the Contractor to the Employer shall be a
 debt payable by the Employer to the Contractor or by the
Contractor to the Employer, as the case may be.

34.22 Unless a written request to concur in the appointment of an

Arbitrator shall have been given under clause 45.0 of these conditions
by either party before the final certificate has been issued, or within
thirty days after such issue, the said certificate shall be conclusive
evidence in any proceedings arising out of this contract (whether by
arbitration under clause 45.0 of these conditions or otherwise) that
the Works have been properly carried out and completed in
accordance with the terms of this contract and that any necessary
effect has been given to all the terms of this contract which require
an adjustment to be made to the Contract price, except and insofar as
any sum mentioned in the said certificate is erroneous by reason of;
34.22.1 Fraud, dishonesty or fraudulent concealment relating to the
Works, or any part thereof, or to any matter dealt with in
the said certificate, or
34.22.1 Any defect including an omission in the Works or any part
thereof which reasonable inspection or examination at any
reasonable time during the carrying out of the Works or
before the issue of the said certificate would not have
disclosed, or
34.22.3 Any accidental conclusion or exclusion of any work,
materials, goods or figure in any computation or any
arithmetical error in any computation.

34.23 Save as aforesaid, no certificate of the Architect shall of itself be

conclusive evidence that any Works, materials or goods which it

34.24 If the Architect shall delete or reduce any sum in the final certificate
which was previously certified in respect of work done or goods and
materials supplied or services rendered by a nominated sub-
contractor or supplier, which sum has already been paid by the
Contractor to the nominated sub-contractor or supplier, the Employer
shall reimburse the Contractor the amount of any sum so overpaid to
the extent that the Contractor is unable to recover the said
overpayment.

34.25 The Employer shall be entitled to deduct from or set off against any
money due from him to the Contractor in interim certificates any sum
 or sums which the Contractor is liable to pay to the Employer arising
under or in connection with the contract.

34.26 Where in these conditions it is provided that an amount is to be

added to or deducted from the contract price, then as soon as such an
amount is assessed in whole or in part, it shall be reflected in the next
payment certificate following such assessment.

34.27 All certificates to be issued by the Architect under this conditions shall
be issued to the Contractor except that the Architect may issue a
special payment certificate to others for payment by the Employer
where the Employer;
34.27.1 Engages others to execute work in accordance with sub-
clause 22.2.
34.27.2 Elects to pay nominated sub-contractors or nominated
suppliers direct in accordance with clauses 31.7 and 32.4.4
34.27.3 Elects to pay direct statutory and similar services providers
in accordance with clause 17.2.

34.28 Any penalties or fines imposed on the Contractor by the relevant

authority for delay in the payment of Value Added Tax and other
taxes levied in the building industry arising from a delay in the
honouring of a payment certificate shall be reimbursed by the
Employer to the Contractor.

35.0 FLUCTUATIONS

35.1 The contract price shall be deemedto have been calculated to include
all duties on materials and goods to be incorporated into the finished
Works unless otherwise stated in the contract. If at any time during
the period of the contract the duties shall be varied and this shall
affect the cost to the Contractor of such materials, then the Quantity
Surveyor shall assess the net difference in cost of such materials. Any
amount from time to time so assessed shall be added or deducted
from the contract price, as the case may be. For purposes of this
clause, ‘duties’ shall include all customs and excise charges, tariffs,
V.A.T and other taxes and duties imposed by statutory authority in
the country where the Works are being carried out.

35.2 The contract price shall be deemed to be based on exchange rates

current at the date of tender in calculating the cost to the Contractor
 of materials to be specifically imported (by express provisions in the
contract bills or specifications) for permanent incorporation in the
Works. Unless otherwise stated in the contract, if at any time during
the period of the contract the exchange rates shall be varied and this
shall affect the cost to the Contractor of such materials, then the
Quantity Surveyor shall assess the net difference in the cost of such
materials. Any amount from time to time so assessed shall be added
to or deducted from the contract price, as the case may be.

35.3 Unless otherwise stated in the contract, the contract price shall be
deemed to have been calculated in the manner set out below and in
sub-clauses 35.4 and 35.5 and shall be subject to adjustment in the
events specified thereunder;
35.3.1 The prices contained in the Contract bills shall be deemed to
be based upon the rates of wages and other emoluments
and other expenses as determined by the Joint Building
Council of Kenya (J.B.C) and set out in the schedule of basic
rates annexed to the contract bills.
35.3.2 Upon J.B.C determining that any of the said rates of wages
or other emoluments and expenses are increased or
decreased, then the contract price shall be increased or
decreased by the amount assessed by the Quantity Surveyor
based upon the difference, expressed as a percentage,
between the rate set out in the annexed schedule of basic
rates and the rate published by the J.B.C and applied to the
quantum of labour incorporated within the amount of work
remaining to be executed as the date of publication of such
increase or decrease.
35.3.3 No adjustment shall be made in respect of changes in the
rates of wages and other emoluments and expenses which
occur after the date of practical completion except during
such other period as may be granted as an extension of
time under clause 36.0 of these conditions.

35.4 The prices contained in the contract bills shall be deemed to be based
upon the basic prices of materials to be permanently incorporated in
the Works as determined by the J.B.C and set out in the schedule of
basic rates annexed to the contract bills.
 35.5 Upon the J.B.C determining that any of the said basic prices are
increased or decreased then the contract price shall be increased or
decreased by the amount to be assessed by the Quantity Surveyor
based upon the difference between the price set out in the schedule
of basic rates and rate published by the J.B.C and applied to the
Quantum of the relevant materials which have not been taken into
account in arriving at the amount of any interim certificate under
clause 34.0 of these conditions issued before the date of publication
of such increase or decrease.

35.6 No adjustment shall be made in respect of changes in basic prices

which occur after the date for practical completion except during such
other period as may be granted as an extension of time under clause
36.0 of these conditions.

35.7 The provisions of sub-clauses 35.1 and 35.2 herein shall not apply in
respect of any materials included in the annexed schedule of basic
rates.

35.8 The provision of sub-clause 35.3 to 35.5 shall not apply to nominated
sub-contractors and nominated suppliers except in so far as shall be
specifically provided in any sub-contract agreement.

36.0 EXTENSION OFTIME

36.1 Upon it becoming reasonably apparent that the progress of the Works
is delayed, the Contractor shall forthwith give written notice of the
cause of the delay to the Architect with supporting details showing
the extent of delay caused or likely to be caused. Thereafter the
Architect shall evaluate the information supplied by the Contractor
and if in his opinion the completion of the Works is likely to be or has
been delayed beyond the date for practical completion stated in the
appendix to these conditions or beyond any extended time previously
fixed under this clause;
36.1.1 By force majeure, or
36.1.2 By reason of any exceptionally adverse weather conditions,
or
36.1.3 By reason of loss or damage occasioned by any one or more
of the contingencies referred to in clauses 13.0, 14.0, or 15.0
of these conditions , or
36.1.4 By reason of civil commotion, strike or lockout affecting any
of the trades employed upon the Works any of the trades
engaged in the preparation, manufacture or transportation
of any of the goods or materials required for the Works, or
36.1.5 By reason of Architect’s instructions issued under clauses
22.0, 28.1 and 30.0 of these conditions, or
36.1.6 By reason of the Contractor not having received in due time
necessary instructions, drawings, details or levels from the
Architect for which he specifically applied in writing on a
date which having regard to the date for practical
completion stated in the appendix to these conditions or to
any extension of time then fixed under this clause was
neither unreasonably distant from nor unreasonably close to
the date on which it was necessary for him to receive the
same, or
36.1.7 By delay on the part of artists, tradesmen or others engaged
by the Employer in executing work not forming part of this
contract, or
36.1.8 By reason of delay by statutory or other services providers or
similar bodies engaged directly by the Employer, or
36.1.9 By reason of the opening up for inspection of any work
covered up or of the testing of any of the work, materials or
goods in accordance with sub-clause 23.6 of these
conditions (including making good in consequence of such
opening up or testing), unless the inspection or test showed
that the work, materials or goods were not in accordance
with this contract, or
36.1.10 By the Contractor’s inability for reasons beyond his control
and which he could not reasonably have foreseen at the date
of this contract, to obtain delivery upon the Works of such
goods or materials as are essential to the proper carrying out
of the Works, or
36.1.11 By reason of carrying out the Works having been suspended
by the Contractor in accordance with clause 29.0, or
36.1.12 By reason of delay in appointing a replacement Architect,
Quantity Surveyor or Engineers, or
36.1.13 By reason of delay caused by the late supply of goods or
materials or in executing work for which the Employer or
 his agents are contractually obliged to supply or to execute
as the case may be, or
36.1.14 By reason of delay caused by nominated sub-contractors or
nominated suppliers which delay the Contractor has taken
all reasonable measures to avoid or reduce the effects of, or
36.1.15 By reason of the Contractor’s inability, for reasons beyond
his control, to secure such skilled labour and other workmen
essential to the proper carrying out of the Works. or
36.1.16 By delay arising from the nomination or renomination of a
sub-contractor or supplier, or
36.1.17 By delay in receiving possession of or access to the site.

36.2 Then the Architect shall so soon as he is able to estimate the length of
the delay beyond the date or time aforesaid, but in any case not later
than thirty days after receiving an application for extension of time in
the manner prescribed, make in writing a fair and reasonable
extension of time for the completion of the Works.

36.3 Provided always that should a cause of delay be of continuing effect,

the Architect shall make an interim decision within the said thirty days
and a final decision made within thirty days of the end of the cause of
delay.

36.4 The Contractor shall use constantly his best endeavors to prevent
delay and shall do all that may reasonably be required of him to the
satisfaction of the Architect to proceed with the Works.

36.5 If the Architect’s decision on extension of time is not communicated

to the Contractor within the said thirty days, and no justifiable
grounds are given for the failure to act, the time applied for by the
Contractor shall be deemed to have been accepted by the Architect
as being a fair extension of time for the completion of Works. Such a
decision shall take effect not earlier than fourteen days after the
expiry of the thirty day period.

36.6 If by the Architect’s instructions the scope of the Works is reduced

and in the opinion of the Architect the time for completion of the
Works has been or is likely to be reduced, the Architect shall as soon
as he is able to estimate the reduction in time, make in writing a fair
and reasonable reduction to the time for completion of the Works
 shall be notified to the Contractor within thirty days from the date of
issue of such Architect’s instructions.

36.7 The Architect shall not be bound to evaluate a request for extension
of time which is submitted more than thirty days after the events
listed in sub-clause 36.1 have occurred.

36.8 All applications for extension of time and all decision on the same
shall be copied to the Employer at the time of application or
decision, as the case may be.

37.0 LOSS AND EXPENSE CAUSED BY DISTURBANCE OF REGULAR PROGRESS OF THE

WORKS

37.1 If upon written application being made to him by the Contractor

the Architect is of the opinion that the Contractor has been involved
in direct loss and or expense for which he would not be reimbursed
by a payment made under any other provision in this contract by
reason of the regular progress of the Works or of any part thereof
having been materially affected by;
37.1.1 The Contractor not having received in due time necessary
instructions, drawings, details or levels from the Architect
for which he specifically applied in writing, on a date which
having regard to the date for practical completion stated in
the appendix to these conditions or to any extension of time
then fixed under clause 36.0 of this conditions was neither
unreasonably close to the date on which it was necessary for
for him to receive the same, or
37.1.2 The opening up for inspection of any work covered up or the
testing of any work, materials or goods in accordance with
clause 23.0 of these conditions (including making good in
consequences of such opening up or testing), unless the
inspection or test showed that the work, materials, or goods
were not in accordance with this contract, or
37.1.3 Delay in appointing a replacement Architect, Quantity
Surveyor or Engineer, or
37.1.4 Any discrepancy in or divergence in these conditions, the
contract drawings, specifications and or the contract bills,
or
 37.1.5 Delay on the part of artists, tradesmen or others engaged
by the Employer in executing work not forming part of this
contract; or
37.1.6 Delay by statutory or other services providers or similar
bodies engaged directly by the Employer, or
37.1.7 Architect’s instructions issued in regard to the
postponement of any work to be carried out under the
provisions of this contract, or
37.1. 8 Delay arising from the nomination or renomination of
a sub-contractor or supplier, or
37.1.9 The Contractor suspending the carrying out of the Works
in accordance with clause 29.0 of these conditions, except
under sub-clause 29.1.3., or
37.1.10 Delay caused by the late supply of goods or materials or in
executing work for which the Employer or his agents are
contractually obliged to supply or to execute as the case
may be, or
37.1.11 Delay in receiving possession of or access to the site.

37.2 And if the written Application is accompanied by detailed particulars

of the claim and it is made within the period stated in sub-clause 37.4
herein upon it becoming apparent that the progress of the Works or
of any part thereof has been affected as aforesaid, then the Quantity
Surveyor shall as soon as practicable assess the amount of such loss
and or expense. Any amount from time to time so assessed shall be
added to the contract price, and if an interim certificate is issued after
the date of assessment, any such amount shall be added to the
amount which would otherwise be stated as due in such a certificate.

37.3 Upon the happening of any of the events listed at sub-clause 37.1.1 to
37.1.11, the Contractor shall maintain such records as may be
necessary to support any claim he may wish to make. The Quantity
Surveyor may request any further information as he may deem
necessary for a fair and just assessment of the claim.

37.4 The Contractor shall give written notice to the Architect of his
intention to make a claim within thirty days after the event giving rise
to the claim has first arisen. The claim shall be submitted within thirty
days thereafter.
 37.5 Provided always that should the event giving rise to the claim be of
continuing effect, the Contractor shall submit an interim claim within
thirty days and a final claim within thirty days of the end of the event
giving rise to the claim.

37.6 If the Contractor fails to comply with any of the provisions of this
clause in respect of any claim he seeks to make, his entitlement to
payment in respect thereof shall not exceed such amount as the
Quantity Surveyor or any Arbitrator appointed under clause 45.0
shall consider to be verified by contemporary records submitted at
the time the event occurred.

37.7 All applications for the reimbursement of loss and or expense made
by the Contractor, and all assessments of loss and expense made by
the Quantity Surveyor, shall be copied to the Employer.

38.0 TERMINATION OF THE CONTRACT BY THE EMPLOYER

38.1 Without prejudice to any other rights and remedies which the
Employer may possess, if the Contractor shall make default in any
one or more of the following respects, that is to say,
38.1.1 If he without reasonable cause wholly suspends the carrying
out of the Works before completion thereof, for a period
exceeding fourteen days, or
38.1.2 If he fails to protect regularly and diligently with the Works,
or
38.1.3 If he fails to commence the Works within thirty days of the
date for commencement, or
38.1.4 If he refuses or persistently neglects to comply with a written
notice from the Architect requiring him to remove defective
work or improper materials or goods, and by such refusal or
neglect the Works are materially affected, or
38.1.5 If he fails to comply with the provisions of clause 26.0 and
27.0 of these conditions, or
38.1.6 If despite previous notices from the Architect in writing he
persistently or flagrantly neglects to comply with any of his
obligations under the contract,

38.2 Then the Architect may give to the Contractor a notice by registered
post or recorded delivery specifying the default, and if the Contractor
 either shall continue such default for fourteen days after receipt of
such notice or shall at any time thereafter repeat such default then
the Employer may within fourteen days after such continuance or
repetition by notice by registered post or recorded delivery, forthwith
terminate the contract, provided that such notices shall not be given
unreasonably or vexatiously.

38.3 In the event of the Contractor becoming bankrupt or making a

composition or arrangement with his creditors or having a winding
up order made or (except for purposes of reconstruction) a
resolution for a voluntary winding up passed or a receiver or
manager of his business or undertaking duly appointed or manager of
his business or undertaking duly appointed or possession taken by or
on behalf of the holders of any debentures secured by a floating
charge of any property comprised in or subject to the floating charge,
then the contract shall automatically terminate but it may be
reinstated and continued if the Employer and the Contractor, his
trustee in bankruptcy, receiver or manager, as the case may be, shall
so agree.

38.4 In the event of the contract being terminated as aforesaid and so long
as it has not been reinstated and continued, the following shall be the
respective rights and duties of the Employer and the Contractor;
38.4.1 The carrying out of the Works by the Contractor shall cease
forthwith and the Contractor shall vacate the site thereby
relinquishing possession thereof and the responsibility and
care of the site and the Works shall henceforth pass to the
Employer.
38.4.2 So soon as it is practicable, the Architect shall arrange a joint
inspection with the Contractor and the Quantity Surveyor
for the purpose of taking a record of the work done,
materials and goods delivered on site, the Contractor’s
equipment, and temporary buildings.
38.4.3 The Quantity Surveyor shall, within a reasonable time after
the inspection, prepare a final account for that part of the
Works carried out by the Contractor by the date of
termination of the contract.
 38.5 The Employer may employ and pay other persons to carry out and
complete the Works and rectify any defects and he or they may enter
upon the Works and use all temporary buildings, equipment, goods
and materials intended for, delivered to and placed on or adjacent to
the Works, and may purchase all materials and goods necessary for
the carrying out and completion of the Works.

38.6 The Contractor shall, if so required by the Employer, within fourteen

days of the date of termination, assign to the Employer without
payment the benefit of any agreement for the supply of the materials
or goods and or for the execution of any work for the purposes of
this contract, but on the terms that a supplier or sub-contractor
shall be entitled to make any reasonable objection to any further
assignment thereof by the Employer. In any case, the Employer may
pay any supplier or sub-contractor or sub-contractor for any materials
delivered or works executed for the purpose of this contract (whether
before or after the date of termination) insofar as the cost thereof has
not already been paid by the Contractor. The Employer’s rights under
this sub-clause are in addition to his rights to pay nominated sub-
contractors as provided in sub-clause 31.7 of these conditions and
payments made under this sub-clause may be deducted from any
due or to become due to the Contractor.

38.7 The Contractor shall as and when required in writing by the Architect
so to do (but not before) remove from the Works any temporary
buildings, equipment, goods and materials belonging to or hired by
him. If within thirty days after any such requirement has been made
or the Contractor has not compiled therewith, then the Employer may
(but without being responsible for any loss or damage) remove and
sell any such property of the Contractor holding the proceeds less all
costs incurred to the credit of the Contractor.

38.8 The Contractor shall allow or pay to the Employer in the manner
hereinafter appearing, the amount of any direct loss or and or
damage caused to the Employer by the termination. Until after
completion of the Works under sub-clause 38.5, the Employer shall
not be bound by any provision of this contract to make any further
payments to the Contractor, but upon such completion and the
verification within a reasonable time of the accounts therefore, the
 Quantity Surveyor shall assess the amount of expenses properly
incurred by the Employer and the amount of any direct loss or
damage caused to the Employer by the termination and, if such
amounts when added to the money paid to the Contractor before the
date of termination exceed the total amount which would have been
payable to the on due completion in accordance with this contract,
the difference shall be a debt payable to the Employer by the
Contractor. If the said amounts when added to the money paid to
the Contractor be less than the said total amount, the difference shall
be a debt payable by the Employer to the Contractor.

38.9 The Contractor shall not be relieved of any of his obligations and
liabilities in regard to the part of the Works carried out by him.

39.0 TERMINATION OF THE CONTRACT BY THE CONTRACTOR

39.1 Without prejudice to any other rights and remedies which the
Contractor may possess, if:
39.1.1 The Contractor does not receive a payment certificate
which he applied for in accordance with clause 34.1 of these
conditions within fourteen days of the application and the
default continues for sixty days after expiry of that period,
or
39.1.2 The Employer does not pay to the Contractor the amount
due on any certificate within the period for honouring
certificates named in clause 34.5 of these conditions and
continues such default for sixty days after expiry of that
period, or
39.1.3 The Employer interferes with or obstructs the issue of any
certificate due under this contract, and continues such act
for sixty days after a notice of default has been issued by the
Contractor, or
39.1.4 The carrying out of the whole or substantially the whole of
the uncompleted Works (other than the execution of work
required under sub-clause 41.6 of these conditions) is
suspended for a continuous period of sixty days by reason of;
39.1.4.1 Delay in receiving possession of or access to the
site, or
39.1.4.2 Architect’s instructions issued under clauses 22.0,
 28.1, or 30.0 of these conditions, or
39.1.4.3 The Contractor not having received in due time
necessary instructions, drawings, details or levels
from the Architect for which he is specifically
applied in writing on a date which having regard
to the date for practical completion stated in the
appendix to these conditions, or to any extension
of time granted under clause 36.0 of these
conditions, was neither unreasonably distant
from nor unreasonably close to the date on which
it was necessary for him to receive the same, or
39.1.4.4 Delay in appointing a replacement Architect,
Quantity Surveyor or Engineer, or
39.1.4.5 Delay on the part of Artistes, tradesmen or
engaged by the Employer in executing the works
not forming part of this contract, or
39.1.4.6 Delay by statutory or other services providers or
similar bodies engaged directly by the Employer,
or
39.1.4.7 Delay due to the opening up for inspection of
any work covered up or the testing of any of the
work, materials or goods in accordance with
sub-clause 23.6 of these conditions (including
making good in consequence of such opening
up or testing) unless the inspection or test
showed that the work, materials or goods were
not in accordance with contract, or
39.1.4.8 The Contractor having suspended the carrying
out of the Works in accordance with clause 29.0
of these conditions, except under sub-clause
29.1.3, or
39.1.4.9 Delay arising from the nomination of a sub-
contractor or supplier.

39.2 The Employer becomes bankrupt or makes a composition or

arrangement with his creditors or has a winding up order made
or (except for the purposes of reconstruction) a resolution for a
voluntary winding up passed or a receiver or manager of his
business or undertaking is duly appointed or possession is taken
 by or on behalf of the holders of any debentures secured by a floating
charge of any property comprised in or subject to the floating charge.

39.3 Then the Contractor may give the Employer a notice by registered
post or recorded delivery with a copy to the Architect specifying the
default and should continue foe fourteen days after receipt of such
notice, the Contractor may forthwith terminate the Contract.

39.4 Upon such termination, then without prejudice to the accrued rights
or remedies of either party or to any liability mentioned in clause 11.0
of these conditions which may accrue either before the Contractor or
any sub-contractors shall have removed their temporary buildings,
equipment, goods or materials or by reason of their so removing
the same, the respective rights and liabilities of the Contractor and
the Employer shall be as follows, that is to say;
39.4.1 The carrying out of the Works by the Contractor shall cease
forth and the Contractor shall vacate the site thereby
relinquishing possession thereof and the responsibility and
care of the site and the Work shall henceforth pass to the
Employer.
39.4.2 So soon as it is practicable, the Architect shall arrange a joint
inspection with the Contractor and the Quantity Surveyor for
the purpose of taking a record of the work done, materials
and goods delivered on site.
39.4.3 Thereafter the Contractor shall with all reasonable dispatch
and in such manner and with such precautions as will prevent
injury, death or damage in respect of which before the date
of termination he was liable to indemnify the Employer under
clause 11.0 of these conditions, remove from the site all his
temporary buildings, equipment, goods and materials and
shall give facilities to his sub-contractors to do the same, but
subject always to the provisions of sub-clause 39.5.4 of this
condition.

39.5 After taking into account amount s previously paid under this contract
, the Contractor shall be paid by the Employer;
39.5.1 The total value of work completed at the date of
termination.
39.5.2 The total value of work begun and executed but not
 completed at the date of termination, the value being
assessed in accordance with clause 30.6 of these conditions
as if such work were a variation required by the Architect.
39.5.3 Any sum assessed in respect of direct loss and or expense
under clause 37.0 of these conditions (whether assessed
before or after the date of termination).
39.5.4 The cost of materials or goods properly ordered for the
Works which the Contractor shall have paid or which the
Contractor shall be legally bound to pay, and which have
been recorded in accordance with sub-clause 39.4.2, and on
such payment by the Employer, any materials or goods so
paid for shall become the property of the Employer and shall
not be removed from the site without the authority of the
Employer.
39.5.5 The reasonable cost of removal under sub-clause 39.4.3
39.5.6 Any direct loss and or damage caused to the Contractor by
the termination.

40.0 TERMINATION OF THE CONTRACT BY EITHER PARTY

40.1 If during the progress of the Works the Government and people of
the country in which the site is located shall become engaged in war,
warlike operations or hostilities or kindred activities which either
directly or indirectly involve or would involve either party in loss or
expense beyond that provided for in or reasonably contemplated by
this contract, the contract may be terminated by either party giving
to the other fourteen days notice by registered post or recorded
delivery. Upon termination the Contractor shall be paid by the
Employer in respect of the work carried out before such termination
in accordance with the provisions of sub-clauses 39.5.1 to 39.5.5 of
these conditions.

40.2 In the event of the Works or any goods or materials brought on the
site for use in the Works being destroyed or damaged by war, warlike
operations or hostilities or kindred activities as the case may be, the
Contractor shall be under no liability whatsoever to repair, reinstate
or make good the destruction or damage so caused and shall be
entitled;
40.2.1 To be paid the full value of the work carried out before such
 event and for all materials on the site for use in the works
(including the work or materials so damaged or destroyed),
and
40.2.2 To be paid for any work done and materials or goods
supplied in the reinstatement or making good of any
destruction or damage so caused upon such terms as may
be agreed between the parties, and in default of agreement
, upon the basis of prime cost plus a reasonable profit to be
assessed by the Quantity Surveyor.

40.3 In the case of works of alterations, repairs or extensions, if the Works

are damaged by any of the contingencies referred to in clause 15.0
and if it is just equitable to do so, the contract may within sixty days
of the occurrence of such loss or damage be terminated at the
opinion of either party upon giving a fourteen days notice by
registered post or recorded delivery. Within fourteen days of
receiving such a notice either party may give o the other a written
request to concur in the appointment of an Arbitrator under clause
45.0 of these conditions in order that it may be determined whether
such termination will be just and equitable. Upon the giving or the
receiving by the Employer of such a notice of termination or, where
a reference to arbitration is made as aforesaid, upon the Arbitrator
upholding the notice of termination, the provisions of sub-clause
39.5.1 to 39.5.5 of these conditions shall apply.

40.4 If the carrying out of the whole or substantially the whole of the
uncompleted Works (other than the execution of work required
under sub –clause 41.6 of these conditions) is suspended for a
continuous period of sixty days by reason of;
40.4.1 Force majeure, or
40.4.2 Loss or damage occasioned by any one or more of the
contingencies referred to in clauses 13.0 and 14.0 of these
conditions (if applicable), or
40.4.3 Loss or damage arising from nuclear activity.

40.5 Then either party may, upon giving a fourteen days notice by
registered post or recorded delivery, terminate the contract,
provided that such notice shall not be given unreasonably or
vexatiously. Upon such termination, the Contractor shall be paid by
 the Employer in respect of the work executed before such
termination in accordance with the provisions of clauses 39.5.1 to
39.5.5.

41.0 PRACTICAL COMPLETION AND DEFECTS LIABILITY

41.1 When in the opinion of the Contractor the whole of the Works are
practically complete, he shall give a notice in writing to the Architect
to that effect. The notice shall be accompanied by an undertaking to
complete any outstanding work within a reasonable time or within
such times as the Architect may direct.

41.2 Within fourteen days of the issue of such notice, the Architect shall
inspect the Works and if in his opinion the works are practically
complete, he shall issue the certificate of practical completion, and
the defects liability period shall be deemed to commence on the date
of issue of the said certificate. If the Works are not practically
complete, he shall specify in writing to the Contractor the work which
in his opinion requires to be completed before the certificate can be
issued.

41.3 The Contractor shall retain possession of the site of the Works up to
and including the date of issue of the certificate of practical
completion and subject to clause 42.0 hereof, the Employer shall not
be entitled to take possession of any part or parts of the Works until
the date.

41.4 Upon the Employer taking possession of the whole or any part of the
Works, (hereinafter referred to as the relevant part), the relevant part
of the Works taken over shall be at the sole risk of the Employer in
every respect as from the date of such taking over.

41.5 Should the Employer take over the whole or any part of the Works
before the issue of a certificate of practical completion, practical
completion shall be deemed to have taken place on the date of
taking over of the whole or any part of the Works.

41.6 Any defects, shrinkages or other faults which shall appear within the
defects liability period stated in the appendix to these conditions, and
which due to materials or workmanship not being in accordance with
the contract shall be specified by the Architect in a schedule of
 defects which he shall deliver to the Contractor not later than thirty
days after the expiration of the said defects liability period. Within a
reasonable time after receipt of such schedule, the defects,
shrinkages and other faults therein specified shall be rectified by the
Contractor and (unless the Architect shall otherwise instructs,)
entirely at his own cost. If the Architect so instructs, then an
appropriate deduction shall be assessed by the Quantity Surveyor and
made to the contract price in respect of any such defects, shrinkages
or other faults not rectified.

41.7 Notwithstanding the provisions of sub-clause 41.6 of this condition,

the Architect may whenever he considers it necessary to do so, issue
instructions requiring any defect, shrinkage or other fault which shall
appear within the defects liability period named in the appendix to
these conditions and which is due to materials or workmanship being
not in accordance with this contract to be rectified and the Contractor
shall within a reasonable time after receipt of such instructions,
comply with the same and (unless the Architect shall otherwise
instruct, in which case the contract price shall be adjusted accordingly
), entirely at his own cost. Provided that no such instructions shall be
issued after delivery of a schedule of defects or after thirty days from
the expiration of the said defects liability period.

41.8 Notwithstanding the provisions of sub-clause 30.10 and sub-clause

41.6 herein, where defects shrinkages or other faults shall occur
during the period or rectification of defects which are not due to
materials or workmanship not being in accordance with the contract,
the Architect may instruct their rectification. Such instruction shall be
treated as a variation and shall be valued in accordance with sub-
clause 30.6 of these conditions.

41.9 When in the opinion of the Architect any defects, shrinkages or other
defaults which he may have required to be rectified under sub-clause
41.6 of this condition shall have been rectified shall issue a certificate
to that effect, the completion of rectification of defects shall be
deemed for all the purposes of this contract to have taken place on
the day named in such certificate.

42.0 SECTIONAL COMPLETION

 42.1 If at any time or times before practical completion of the Works
the Employer with the consent of the Contractor, shall take
possession of any part or parts of the same (any such part being
hereinafter in this clause referred to as ‘the relevant part’) then
notwithstanding anything expressed or implied elsewhere in this
contract.

42.2 Within fourteen days from the date on which the Employer shall have
taken possession of the relevant part, the Quantity Surveyor shall
prepare a valuation stating his estimate of the approximate total
value of the said part. The Architect shall thereafter issue a certificate
for the relevant part and for all the purposes of this condition (but for
no other) the value stated in the certificate shall be deemed to be the
total value of the said part.

42.3 For the purposes of sub-clauses 41.2, 41.6 and 41.7 of these
conditions, practical completion of the relevant part shall be deemed
to have occurred and the defects liability period in respect of the
relevant part shall be deemed to have commenced on the date on
which the Employer shall have taken possession thereof.

42.4 When in the opinion of the Architect any defects, shrinkages or other
faults in the relevant part which he may have required to be rectified
under sub-clause 41.6 and 41.7 of these conditions shall have been
rectified he shall issue a certificate to that effect.

42.5 The Contractor shall reduce the value insured under sub-clause 13.1
of these conditions (if applicable) by the full value of the relevant part
, and the said relevant part shall as from the date on which the
Employer shall have taken possession thereof, be at the sole risk of
the Employer as regards any of the contingencies referred to in the
said sub-clause.

42.6 In Lieu of any sum to be paid or allowed by the Contractor under

clause 43.0 of these conditions in respect of any period during
which the Works may remain incomplete occurring after the date on
which the Employer shall have taken possession of the relevant part,
there shall be paid or allowed such sum as bears the same ratio to
the sum which would be paid or allowed apart from the provisions of
 this condition, as does the contract price less the total value of the
said relevant part of the contract price.

42.7 Within thirty days of the date on which the Employer shall have taken
possession of the relevant part, there shall be paid to the Contractor
from the sums then retained under clause 34.0 of these conditions
(if any), one half of such amount as bears the same ratio of the
unreduced amount named in the appendix to these conditions as
limit of retention fund as does the total value of the said relevant part
to the contract price, and the amount named in the appendix to these
conditions as limit of retention fund shall be reduced by the amount
so paid to the Contractor.

42.8 On the expiration of the defects liability period named in the

appendix to these conditions in respect of the relevant part, or on
the issue of the certificates of completion of rectification of defects
in respect of the relevant part, whichever is the later, there shall be
paid to the Contractor form the sums then retained under sub-clause
34.12 of these conditions (if any), the balance of the amount referred
to in sub-clause 42.7 and the amount named in the appendix to these
conditions as limit of retention fund shall be reduced by the amount
of such payment.

43.0 DAMAGES FOR DELAY IN COMPLETION

43.1 If the Contractor fails to complete the Works by the date for practical
completion stated in the appendix to these conditions, or within any
extended time fixed under clause 36.0 of these conditions, and the
Architect certifies in writing that in his opinion the same ought
reasonably so to have been completed, then the Contractor shall pay
or allow to the Employer a sum calculated at the rate stated in the
said appendix as liquidated damages for the period during which the
Works shall so remain or have remained incomplete, and the
Employer may deduct such sum from any money due or to become
due to the Contractor under the contract or recover the same from
the Contractor as a debt.

43.2 The payment or deduction of such damages shall not relieve the
Contractor from his obligations to complete the Works or any
 part thereof or from any other obligations and liabilities under the
contract.

44.0 ANTIQUITIES AND OTHER OBJECTS OF VALUE

44.1 All fossils, antiquities and other objects of interest or value which may
be found on the site or in excavating the same during the progress of
the work, shall become the property of the Employer. The Contractor
shall carefully take out and preserve all such objects and shall
immediately or as soon as convenient after the discovery of such
articles, deliver the same into the possession of the Architect or of the
Clerk of Works unclean and as excavated.

44.2 If in the opinion of the Architect, compliance with the provisions

of the proceeding sub-clause has involved the Contractor in direct loss
and or expense for which he would not be reimbursed by a payment
made under any other provision in this contract, then the Quantity
Surveyor shall assess the amount of such loss and or expense. Any
amount from time to time so assessed shall be added to the contract
price and if an interim certificate is issued after the date of
assessment, any such amount shall be added to the amount which
would otherwise be stated as due in such a certificate.

45.0 SETTLEMENT OF DISPUTES

45.1 In case any dispute or difference shall arise between the Employer
or the Architect on his behalf and the Contractor, either during the
progress or after the completion or abandonment of the Works,
such dispute shall be notified in writing by either party to the other
with a request to submit it to arbitration and to concur in the
appointment of an Arbitrator within thirty days notice. The
dispute shall be referred to the arbitration and final decision of a
person to be agreed between the parties. Failing agreement to concur
in the appointment of an Arbitrator, the Arbitrator shall be appointed
by the Chairman or Vice Chairman of The Architectural Association of
Kenya, on the request of the applying party.

45.2 The arbitration may be on the construction of this contract or on any

matter or thing of whatsoever nature arising there under or in
connection therewith, including any matter or thing left by this
contract to the discretion of the Architect, or the withholding by the
 Architect of any certificate to which the Contractor may claim to be
entitled or the measurement and valuation referred to in clause 34.0
of these conditions, or the rights and liabilities of the parties
subsequent to the termination of contract.

45.3 Provided that no arbitration proceedings shall be commenced on any

dispute or difference where notice of a dispute or difference has not
been given by the applying party within thirty days of the occurrence
or discovery of the matter or issue giving rise to the dispute.

45.4 Notwithstanding the issue of a notice as stated above, the arbitration

of such a dispute or difference shall not commence unless an attempt
has in the first instance been made by the parties to settle such
dispute or difference amicably with or without the assistance of third
parties.

45.5 In any event, no arbitration shall commence earlier than ninety days
after the service of the notice of a dispute or difference.

45.6 Notwithstanding anything stated herein the following matters may

be referred to arbitration before the practical completion of the
Works or termination of the contract by either party:
45.6.1 The appointment of a replacement Architect, Quantity
Surveyor or Engineer upon the said persons ceasing to act.
45.6.2 Whether or not the issue of an instruction by the Architect is
empowered by these conditions.
45.6.3 Whether or not a certificate has been improperly withheld or
is not in accordance with these conditions.
45.6.4 Any dispute or difference arising in respect of war risks or
war damage.

45.7 All other matters in dispute shall only be referred to arbitration after
the practical completion or alleged practical completion of the Works,
or abandonment of the Works, or termination or alleged termination
of the contract, unless the Employer and the Contractor agree
otherwise in writing.

45.8 The Arbitrator shall, without prejudice to the generality of his powers,
have powers to direct such measurements, computations, tests or
 valuations as may in his opinion be desirable in order to determine
rights of the parties and assess and award any sums which ought to
have been the subject of or included in any certificate.

45.9 The Arbitrator shall, without prejudice to the generality of his powers,
have powers to open up, review and revise any certificate, opinion,
decision, requirement or notice and to determine all matters in
dispute which shall be submitted to him in the same manner as if no
such certificate, opinion, decision, requirement or notice had been
given.

45.10 The award of such Arbitrator shall be final And binding upon the
parties.
APPENDIX CLAUSE

Percentage to cover professional fees for insurance purposes only 13.0

Name of Contractor’s surety 16.1

Amount of surety 16.1

Name of Employer’s surety 16.2

Amount of surety 16.2

Period for submission of programme 18.1

Period for possession of site 20.1

Contract period 20.2

Date for commencement of Works 20.2

Date for practical completion 20.2

Name of the bank for purposes of interest calculation 31.14, 32.4.5, 34.6

Interval for application of payment certificates 34.1

Minimum amount of payment certificate 34.4

Percentage of certified value retained 34.12

Limit of retention fund 34.12

Periods for release of interest on retention money to the Contractor 34.15

Period of final measurement and valuation 34.17

Defects liability period 41.6

Damages for delay in completion 43.1 at the rate of Kshs..

……………………………………….

Signed by the said: ……………………………………………

 EMPLOYER

CONTRACTOR’S PERFORMANCE BOND

BY THIS AGREEMNENT, we………………………………………………………………………………………….. (SURETY)

of……………………………………………………………………………………………………………………………………………….

are bound to…………………………………………………………………………………………………………. ..(EMPLOYER)

in the sum of Kenya Shillings………………………………………………………………………………………………………..

…………………………………………………………………………………………………………(Ksh………………………………….)

to be paid by us to the said………………………………………………………………………………………(EMPLOYER)

WHEREAS by an agreement in writing dated……………………………………………………………………………….

…………………………………………………………………………………………………………………………...(CONTRACTOR)

entered into contract with……………………………………………………………………………………….(EMPLOYER)

to carry out and complete the works therein stated in the manner and by the time therein
specified all in accordance with the provisions of the said contract, namely; (description of
Works)

…………………………………………………………………………………………………………………………………………………….

Now the condition of the above written bond is such that if the said Contractor his executers,
administrators, successors or assigns shall duly perform his obligations under the contract, or if
on default by the Contractor the Surety shall satisfy and discharge the damages sustained by
the Employer thereby up to the amount of the above written bond, then this bond shall be
void, otherwise it shall remain in full force and effect. Upon default, and without prejudice to
his other rights under the contract, the Employer shall be entitled to demand forfeiture of the
bond and we undertake to honour the demand in the amount stated above.

PROVIDED always and it is hereby agreed and declared that no alteration in the terms of the
said contract or in the extent or nature of the Works to be carried out and no extension of time
by the Architect under the contract shall in any way release the Surety from any liability under
the above written bond.
IN WITNESS whereof we have set our hands this…………………………………….day of…………………………

…………………………………………………………... ……………………………………………………….
Surety Witness

Authorized by Power of Attorney No…………………………………………………………..

EMPLOYER’S PAYMENT BOND

BY THIS AGREEMENT, we………………………………………………………………………………………………(SURETY)

of………………………………………………………………………………………………………………………………………………..

are bound to……………………………………………………………………………………………………….(CONTRACTOR)

in the sum of Kenya Shillings……………………………………………………………………………………………………….

………………………………………………………………………………………………..(Ksh…………………………………………)

to be paid by us to the said…………………………………………………………………………………(CONTRACTOR)

WHEREAS by an agreement in writing dated……………………………………………………………………………….

…………………………………………………………………………………………………………………………….(CONTRACTOR)

entered into contract with……………………………………………………………………………………….(EMPLOYER)

to carry out and complete the works therein stated in the manner and by the time therein
specified all in accordance with the provisions of the said contract, namely; (description of
Works)

…………………………………………………………………………………………………………………………………………………….
NOW the condition of the above written bond is such that if the said Employer his executors,
administrators, successors or assigns shall duly perform his payment obligations under the
contract then this bond shall be void, otherwise it shall remain in full force and effect. That is to
say, should the Contractor terminate the contract under clause 39.1.1., 39.1.2 or 39.1.3 of the
contract or should the final certificate remain unpaid beyond the period stated in clause
34.21.3, then without prejudice to his other rights under the contract, the Contractor shall be
entitled to demand forfeiture of the bond and we undertake to honour the demand in the
amount stated above.

PROVIDED always and it is hereby agreed and declared that no alteration in the terms of the
said contract or in the extent or nature of the works to be carried out and no extension of time
by the Architect under the contract shall in any way release the Surety from any liability under
the above written bond.

IN WITNESS whereof we have set our hands this………………………………….day of……………………………

……………………………………………………….. …………………………………………………………………………..

Surety Witness

Authorized by Power of Attorney No……